Where the wild things are: the Endangered Species Act and private property.

The future of the Endangered Species Act(1) (ESA) lately has come under intense scrutiny both within and outside the federal government. Probably the most intractable aspect of the debate is that perennial lightning rod: the property rights issue. As currently written, the ESA has at least the potential to curtail private property use in various ways--whatever its actual impact as implemented may be. The ESA's detractors brand it absolutist in commanding the protection of every endangered species regardless of private property impacts or the species' ecological role,(2) while its partisans find in it ample accommodation of landowners' concerns.(3) At times, the emotions generated by the debate have been extreme.

One can see why. To no one's surprise, the hundreds of species protected by the ESA are sometimes found on private property. When they are, the ESA may pit private economic activity against national concern for aesthetic, ecological, scientific, and recreational values.(4) The landowner may suffer economic loss-immediate, concrete, and quantifiable--while the benefits reaped from the ESA as a member of the public are delayed, uncertain, and noneconomic.(5) Moreover, if the land is not formally purchased by government, the public enjoys the claimed benefits without cost.

Of course, the ESA is but one locus of the tension between government regulation and private property rights. In recent decades, federal, state, and local programs have increasingly sought to curtail uses of private property deemed inconsistent with environmental and other public goals. The reaction has been a burgeoning property rights movement and more Supreme Court attention to clarifying private property safeguards in the Fifth Amendment's Takings Clause.(6) Both the Reagan and Bush Administrations made property rights protection an explicit agenda item,(7) the former issuing an executive order instructing federal agencies to establish procedures for considering and the takings implications of their proposed actions.(8)

Even if one looks solely at wildlife protection, the government-versus-property-rights issue has taken many forms. Analyzing the property impacts of such protections in terms of whether there exists a constitutional taking is merely today's fashion; they have also been challenged as due process violations,(9) government torts,(10) or exceedances of the police power.(11) Nor is the ESA the only source of government wildlife protection affecting private property. Other federal wildlife statutes also have spawned property-related court challenges, such as the Migratory Bird Treaty Act,(12) Eagle Protection Act,(13) and Wild Free-Roaming Horses and Burros Act.(14)

This article offers a descriptive rather than prescriptive overview of the legal intersection between the ESA and private property to provide some focus for the ongoing debate. First, the article sketches the provisions most likely to determine the ESA's impact on private property rights. Second, it details three ways in which the ESA may constrain the use of private property, noting pertinent ESA provisions and case law, particularly on the constitutional takings issue. The ESA authority for formal acquisition of private property also is briefly noted. Finally, the article analyzes cross-cutting legal issues and outlines congressional options and pending legislation. Because property-related case law under the ESA is so sparse, the net is cast broadly to include cases under other wildlife statutes.

I. A PROPERTY-RIGHTS WALK THROUGH THE ESA

Although Congress first adopted endangered species legislation in 1966,(15) the foundation for the property rights issue was not laid until 1973 when the ESA was enacted.(16) The ESA considerably broadened federal management authority over endangered and threatened species, including those on private land.

Under the modern ESA, the possibility of property use constraints begins when the Secretary of the Interior, through the Fish and Wildlife Service (FWS), formally lists a species as endangered or threatened.(17) The Secretary of Commerce, through the National Marine Fisheries Service (NMFS), administers the ESA for marine species.(18) Any species or subspecies of fish, wildlife, or plants may be listed.(19) Significantly, listing is to be done "solely on the basis of the best scientific and commercial data,"(20) without reference to economic costs or private property impacts.

Along with the listing determination, the Secretary is required, when "prudent and determinable," to designate the "critical habitat' of the species--areas essential to the conservation of the species that may necessitate special management or protection.(21) In sharp contrast with listings, a critical habitat designation is to be based both on scientific data and "economic impact and any other relevant impact,"(22) presumably allowing impacts on property interests to be weighed. The Secretary may even exclude an area from critical habitat designation if the benefits of exclusion outweigh those of inclusion (unless exclusion will cause species extinction).(23) This ESA distinction between listing and habitat designation, allowing analysis of property impacts only with the latter, was made by Congress quite deliberately.(24)

Of course, species listing and habitat designation by themselves do not directly interfere with private property. Rather, the ESA provisions triggered by these events may do so. One such provision, section 9, delineates prohibited acts in connection with endangered animals and plants.(25) Section 9's prohibitions apply to both private and public land, and apply regardless of whether critical habitat has been designated.(26) For endangered animals, prohibited acts include (a) the |taking' of members thereof, (b) possessing, selling, or transporting an animal obtained by unlawful "take," (c) transporting an animal interstate in the course of commercial activity, and (d) selling an animal interstate, or importing/exporting same.(27) For endangered plants, the list is narrower, replacing the general "taking" prohibition with more limited strictures.(28) The term "take," a key ESA concept not to be confused with Fifth Amendment takings,(29) is generously defined to include almost any act adversely affecting a species--including "to harass, harm, pursue, hunt.... capture, or collect" a listed animal. Exceptions from section 9 prohibitions, aimed at accommodation of economic growth, may be authorized chiefly for "takings" incidental to otherwise lawful activity (allowing a project to go forward even if it harms some individuals of a listed species),(30) and undue economic hardship due to contracts made prior to federal consideration of a species as possibly endangered.(31)

Permits for incidental "takes" may be issued by the Secretary after the landowner submits a "habitat conservation plan" (HCP).(32) The HCP must address the impacts of the "taking," along with proposed mitigation measures and alternatives to the proposed course of action.(33) If the Secretary finds that the "take" will be incidental, satisfactorily mitigated, and will not appreciably reduce the species' chances for survival and recovery in the wild, the permit must be issued.(34)

By general rule, the FWS has extended all of the endangered species prohibitions to threatened animals and plants.(35) Special rules," withdrawing particular threatened species from aspects of the general regime, have been promulgated for those species with atypical management needs and for "experimental populations."(36)

The other ESA provision with obvious property rights implications affects private development with a federal nexus.(37) Section 7 calls upon each federal agency to consult with the FWS or NMFS, depending on the species involved, to ensure that its actions are "not likely to jeopardize the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of" designated critical habitat.(38) Once consulted, the Secretary must, if listed species might be affected by the proposed action, prepare a "biological assessment" to determine the actual impact.(39) If the Secretary makes a finding of "no jeopardy," he must specify among other things the impact of any incidental "taking" on the species and necessary mitigating measures.(40) The incidental "taking" analysis under section 7 is the same as for incidental "taking" permits issued under section 10.(41)

While section 9 encompasses threats to both individual species members and arguably the species itself, the "jeopardy" language above indicates a section 7 focus solely on threats to the species. However, section 7 is similar to section 9 in seeking to accommodate economic pressures by allowing incidental "takings," where not likely to jeopardize a protected species or adversely affect designated critical habitat.(42) As a last resort, an Endangered Species Committee (popularly dubbed the "God Squad") may allow a project to proceed despite a threat of extinction.(43)

Finally, passing mention should be made of the species recovery plans required under section 4(f).(44) Recovery plans are just that: plans enumerating those measures needed to achieve the recovery of endangered and threatened species to the point where they can be delisted.(45) The ESA is notably vague, however, as to just how far the mandated "site-specific management actions"(46) in recovery plans can go. It is unclear whether they can directly regulate activities on private land or authorize entry by federal agents without the owner's consent.(47) Because no recovery plan

under the ESA has ever sought to do either of these things and because the United States disavows that they may,(48) this article will leave the issue as a lingering question mark.

Stepping back, one can see that the ESA is neither absolutist in the protections afforded covered species, nor, at the other extreme, sensitive to every property impact of those protections. For example, while the incidental "take" exception was added precisely to soften the private property impacts of the ESA,(49) its availability is far from universal. For example, an incidental "take" permit may be issued only when the landowner has submitted a HCP(50)--an expensive proposition for some small landowners. This and other private-property escape valves in the ESA are discussed in more detail below.

II. POSSIBLE TYPES OF ESA PRIVATE PROPERTY IMPACTS

The following appear to be the principal means by which the ESA might conflict, in a fairly immediate fashion, with private property interests. To be sure, other less proximate effects can be hypothesized: trespassers seeking to glimpse a newly listed animal, banks reluctant to lend to a landowner if protected species are present, and so on. But the impacts analyzed here flow directly from the statute and hence raise the issue of government liability more clearly. The focus, again, is placed on the ESA's potential impact; the extent of its actual impact as implemented is only touched upon.

A. Direct Limits on Land Uses That Might Adversely Affect Listed Species

When property rights advocates level their criticisms at the ESA, attention typically centers on any restrictions the Act may impose directly on private land use.(51) The debate extends not only to ESA prohibitions triggered by the presence of a listed species on private land, but to project delays occasioned by government evaluation of permit applications and the possibility that strictures under other federal and state laws may be applied.

1. ESA Provisions

The interpretation of section 9's "take" prohibition as including harmful habitat alterations is a key reason the ESA is thought to collide with property interests. The term "take" is defined by the ESA to include "harm" to members of a listed species.(52) "Harm," in turn, is defined by the FWS to include indirect harm by means of certain habitat alterations:

Harm in the definition of "take" in the Act means an act which

actually kills or injures wildlife. Such act may include significant

habitat modification or degradation where it actually kills or injures

wildlife by significantly impairing essential behavioral patterns,

including breeding, feeding or sheltering.(53)

In bringing certain substantial habitat modifications within the definition of "harm," the FWS hardly lacked a mandate. At the plain meaning level, a habitat modification that "actually kills or injures wildlife" makes fair claim to being a "harm." Moreover, the ESA recognizes that loss of habitat is a principal threat to endangered species, and countering this trend is a central purpose of the ESA.(54) Regrettably, however, the habitat of listed species often overlaps private land (and, in the case of listed aquatic species, may be in tension with private water lights). With more than 800 domestic species listed as endangered or threatened under the ESA,(55) and thousands more awaiting consideration,(56) the spectre has been raised by some that the ESA presents a ubiquitous threat to the institution of private property.(57) Recall that habitat modification may constitute a prohibited "take" under section 9 regardless of whether the land is designated as critical habitat,(58) although the importance of critical habitat to species survival may well increase the prospect that "takings" will be discerned there.

Notwithstanding the foregoing arguments for including the most adverse habitat modifications within the concept of harm, the matter is not free from doubt, as both scholarly and judicial ambivalence testifies.(59) In the courts, the litigation in Palila v. Hawaii Dep't of Land and Natural Resources generated a series of decisions that long stood as the unchallenged judicial pronouncement on the harm-habitat modification question. In Palila I,(60) the Ninth Circuit Court of Appeals held that the state's maintenance of game animals in the critical habitat of the endangered Palila bird was causing significant habitat degradation, constituting a "harm" to the species and hence an unlawful "take."(61) Concerned that Palila I might be read to imply that habitat degradation in the absence of actual injury to species members can constitute harm, the FWS in 1981 proposed to redefine the term as simply "an act or omission which injures or kills wildlife."(62) Adverse public comments lead to withdrawal of this proposal and promulgation of the current definition, accompanied by explanation quite similar to the Palila I reading of the prior definition.(63) In Palila II, the Ninth Circuit applied the revised definition to again find a "taking" by the state when it introduced a different game animal into Palila habitat.(64) The district court in Palila II, however, held expansively that habitat modification merely preventing the recovery of a species also constitutes harm.(65)

The first rumblings beneath the Palila edifice came in 1993, when in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt(66) the District of Columbia Court of Appeals again sustained the FWS definition of harm as including certain habitat modifications, but with one judge in dissent. On petition for reconsideration, the dissenter was joined by a second judge formerly in the majority, producing a 1994 ruling invalidating the inclusion of habitat modification.(67) The new majority construed "harm" in line with the other component terms in the ESA definition of "take," all of which, in the court's view, envision "the perpetrator's direct application of force against the animal taken."(68) The court drew further support from its perception that through ESA sections 5 and 7, the Act "assign[s] the primary task of habitat preservation to the government,"(69) not private landowners. Finally, the court rejected arguments that Congress' adoption of the incidental "take" provision in 1982 made the FWS' definition more reasonable, or constituted after-the-fact ratification. Interestingly, the holding was influenced by the implications of the FWS' habitat-inclusive definition "in terms of the resulting extinction of private rights.(70)

The United States has petitioned for rehearing in Sweet Home Chapter,(71) unsurprising given the importance of the FWS definition to implementing section 9. In the meantime, it is assumed herein that the current FWS definition is valid. ESA section 7, applicable to activity on privately owned designated critical habitat where there is a federal nexus, is unaffected by the court ruling.

Long before the latest decision in Sweet Home Chapter, and continuing after it, the Clinton Administration has been exploring how mechanisms in the existing ESA might by used more creatively than in previous administrations to enhance the program's flexibility.(72) Of course, the threshold inquiry is whether a species can be adequately protected by using only federal land. Because this solution is not always available, much thinking has focussed on easing the impact of section 9.(73) Hopeful eyes at the Interior have turned toward more frequent use of section 10's incidental "take" provision,(74) which was added in 1982 for just such an accommodative purpose.(75) However, HCPs, without which an incidental "take" permit cannot be issued, have been controversial. Their cost may be prohibitive for small landowners not covered by regional or project HCPs funded by big developers or state and local governments. Moreover, HCP preparation can impose costly delays on development.(76) The FWS reports that as of the beginning of 1994, it had approved twenty-one incidental "take" permits with accompanying HCPs in the program's twelve-year history,(77) seemingly a modest rate. Still, supporters continue to urge that the HCP program can attain its mandate as a central ESA mechanism for innovative resolution of conflicts with the economic visions of landowners.(78)

In addition to HCPs, two other ESA devices are being explored by the current Secretary of the Interior to enhance the program's flexibility.(79) One mechanism is greater use of threatened, rather than endangered, status for listed species when the statute and facts allow. Under section 4(d), the Secretary has far more managerial discretion over threatened species and may, through special rules, exempt a species from some or all of section 9's proscriptions.(80) Although section 4(d) dates back to the original 1973 ESA, the Department of the Interior (Interior) has only recently proposed employing special rules with significant frequency as a means of easing land-use conflicts.(81) In part, Interior's design is that the large scale on which section 4(d) rules often operate will allow the use of new techniques (such as density transfers, off-site mitigation, and dedications) not practical in small-landowner incidental "take" permits.(82) Employed in this way, the special rule becomes a rulemaking version of an HCP, issuable at Interior's initiative. Of course, the new enthusiasm for this flexible tool does not allow the Secretary to ignore biological data that may legally compel endangered status.(83)

Interior also is examining the section 6(c) federal-state cooperative agreement for its conciliatory potential.(84) Many questions exist as to use of this device, not the least of which is whether it exempts individuals in agreement states from section 9 prohibitions.(85)

In contrast to section 9, section 7's impact on the private landowner occurs only when there is a federal nexus--e.g., when development cannot occur without issuance of a federal wetlands permit.(86) Section 7 conflicts are found in only a small minority of consultations, and in most instances can be resolved by alternative proposals or mitigation conditions.(87) If not, however, a project may be entirely thwarted. Because of the political and procedural obstacles involved, pursuit of an Endangered Species Committee explosion exemption from section 7 is an option only for the largest projects.(88)

If granted, section 7 approvals trump section 9's prohibitions. That is, when the Secretary has issued a section 7 incidental "take" statement, "takings" that occur in compliance with that statement are not actionable under section 9.(89)

2. Case Law

While direct land-use restrictions under the ESA spark impassioned debate, there has been curiously little activity in the courts. There are no federal-court taking decisions under the ESA in the direct land-use restriction category.(90) Environmentalists infer from the lack of cases that the ESA-property rights conflict is vastly overstated--that the Act and its enforcing agencies are flexible enough.(91) Property rights advocates argue that the substantive hurdles and high costs of takings litigation may be what is discouraging resort to the courts, not any lack of economic impacts from the Act.(92)

The environmentalist argument has some force, given that other federal environmental programs caught up in the property rights debate, especially wetlands protection, have spawned a hefty number of takings claims.(93) But one cannot infer from the meager number of ESA takings suits alone that the ESA has universally insignificant impact on private land use, since the daunting demands of takings law discourage suit in all but extreme instances of property value loss. Moreover, property value loss is gauged by reference to the property as a whole; total deprivation of economic use on only a portion of a private tract is not a taking if economic use of the unaffected portion remains feasible.(94) Thus, the large majority of any ESA impacts on private property are likely to fall short of the constitutional takings threshold.

Additionally, even mentorious suits must meet the Supreme Court's exacting ripeness requirements. Generally, a taking claim is not ripe until a regulation results in a land-use restriction being applied directly to plaintiff's specific parcel;(95) for example, a required permit must be applied for and denied.(96) Beyond that, the landowner must apply for and be denied any available exceptions from the land-use restriction(97) and, unless it would be futile, must then seek approval of scaled-down (but still profitable) development proposals.(98)

For ESA purposes, these ripeness precepts mean that merely listing a species cannot support a taking claim. There may also be no taking when a landowner receives a FWS warning notice that a proposed activity would be considered a section 9 "taking," and would thus be prosecutable. Rather, it would seem that to clear the ripeness hurdle the landowner must first apply for and be denied an incidental "take" permit for the proposed activity, then (unless futile) propose one or more scaled-down versions which also are denied. Under section 7, there also is an issue of whether denials of federal permits requisite for private development can give rise to a ripe taking claim before the Endangered Species Committee exemption process, where applicable, is exhausted unsuccessfully.(99)

Thus far, the only court decision addressing direct limits on property use and involving federal wildlife law alone is an older case not arising under the ESA.(100) Still, there is ongoing taking litigation involving the ESA directly(101) and indirectly,(102) with intimations of more to come. For example, additional taking lawsuits based upon timbering restrictions to protect the threatened northern spotted owl would seem likely given their geographic breadth.(103) One need not look hard to find other acrimonious ESA-property rights disputes that could breed litigation.(104)

ESA takings litigation conceivably may also arise from government measures to protect aquatic species, especially where they impinge upon state-law water rights.(105) Government efforts to maintain instream flows to conserve listed species of salmon found in the Columbia and Sacramento rivers have been suggested to conflict with such rights.(106) Other conflicts with water rights may arise from the recent designation of 1,980 miles of the Colorado River as critical habitat for four endangered fishes,(107) and from court injunctions against the operation of irrigation district diversion facilities that suck listed salmon into their pumps.(108) Considering both the water- and non-water-related litigation possibilities, the absence thus far of taking decisions involving ESA-based property restrictions should not instill a sense of complacency.

Takings decisions in the direct-prohibition category have also arisen under state wildlife protection laws. A recent judicial pronouncement is Southview Associates, Ltd. v. Bongartz,(109) addressing Vermont's denial of a permit for a vacation home development that would overlap a state-protected "deeryard area."(110) The court found no physical taking based on the invading deer, explaining that the developer had not met what the court construed to be the Supreme Court's criteria for a compensable permanent physical occupation.(111) First, the developer had not lost the right to possess the deeryard area, nor to exclude the deer. Second, it had not lost the right to control the deeryard's use. For example, the developer, to the exclusion of others, could still walk, camp, ski, or even hunt deer on the land. Finally, these uses meant that the deeryard area was far from worthless.(112) In addition to discerning no physical taking, plaintiffs regulatory taking claim was found to be unripe.(113)

Another recent state-law decision is Florida Game and Fresh Water Fish Commn v. Flotilla, Inc.,(114) finding that a developer suffered no taking when acreage in a subdivision development had to be left undisturbed for several years while occupied by a nesting pair of bald eagles. The court applied a multi-factor analysis akin to that in Southview Associates to conclude that there was no physical taking. It then rejected the temporary regulatory taking claim on the grounds that plaintiff was deprived of only its ideal economic use of the land, and the portion actually restricted constituted less than a third of the entire subdivision development. In addition, the development restrictions protecting the nesting pair served "vital public interest."(115)

Southview and Flotilla are significant as seemingly the only court decisions in the era of modern regulatory takings jurisprudence(116) to address the takings implications of property controls imposed solely on behalf of wildlife. Together, these decisions suggest that the high priority purpose of the ESA to avert the extinction of species will not prompt courts to place ESA-based property restrictions in any categorical status, removed from the customary case-by-case approach to testing for takings.

Of course, even when the owner of land on which protected species or habitat is found manages to obtain requisite approvals, the attendant delay (and resultant costs) may prompt thoughts of seeking compensation for a temporary taking. Although this tack has not yet been tested under the ESA,(117) federal courts consistently assert in other contexts that only those government-caused delays that are "extraordinary" trigger Fifth Amendment protection.(118) However, there appears to be no federal court that has ever found such an egregious delay. Like much else in the takings calculus, precisely how long an ESA delay (or associated delay from environmental impact statement preparation) must be before it is considered "extraordinary" is a matter for case-by-case determination.

B. Limits On Defensive Measures Protecting Private Property From Harm by Listed Species

Of older vintage than direct land-use controls are instances when a person is barred from using certain measures to protect his property from the depredations of protected wild animals. A typical scenario, arising under federal wildlife laws and state hunting bans, involves protected birds or deer that feed on private crops or forage.(119) Another situation, arising under the ESA, involves protected predators, such as wolves and grizzly bears, that occasionally kill private livestock.(120) As will be seen, the linch pin issue in these cases is whether the actions of wild animals may be imputed to government.

1. ESA Provisions

Although the ESA allows a defense to the section 9 'taking" ban based on good faith belief that one was protecting persons from bodily harm, the Act does not offer a comparable defense for private property.(121) However, two FWS "special rules" allow government agents, but not private individuals, to "take" members of threatened species and experimental populations that have actually harmed property.(122) One special rule speaks to grizzly bears, a threatened species.(123) Grizzlies "committing significant depredations to lawfully present livestock, crops, or beehives" may be humanely "taken" by government agents when relocation attempts have failed.(124) The second special rule similarly addresses experimental populations of red wolves.(125) If other threatened species and experimental populations harm private property, more special rules presumably will be issued. However, the ESA cannot easily be read to allow the FWS a similar freedom to abate property injuries if a species is listed as endangered. Direct action by the property owner against a nuisance animal plainly could not qualify for an incidental "take" permit, because the "take" would be the property owner's very aim and not merely incidental.(126)

2. Case Law

Most inverse condemnation decisions dealing with federal wildlife laws concern limitations on property defense,(127) and all of them have ruled against the property owner.(128) Prominent in the federal court decisions is a refusal to attribute the actions of wild animals to the government, even when such animals are managed by government to some degree.(129) This governmental nonresponsibility is an aspect (or perhaps extension) of the common law doctrine of ferae naturae, under which no person is liable for injuries wrought by animals existing in a state of nature until they are reduced to possession by skillful capture.(130) Nonattribution to government has been endorsed consistently despite government's contributory role in property damage by limiting landowners' defenses or failing to properly manage the species.(131)

In the only ESA case in this area, Christy v. Hodel,(132) a rancher who shot a grizzly bear menacing his sheep, after losing many sheep to bears, was administratively assessed a civil penalty of $2,500 for his "take" of a threatened species.(133) The court found no regulatory taking of Christy's

sheep because FWS regulations left him in possession of a complete bundle of property rights in them. Additionally, the court found no physical taking of the sheep because the United States neither owns nor controls the wildlife it protects; the rancher's loss is merely the "incidental . . . result" of reasonable regulation.(134) In lone dissent from the denial of certiorari, however, Justice White posed a question much repeated by property rights advocates: whether "a Government edict barring one from resisting the loss of one's property is the constitutional equivalent of an edict taking such property in the first place."(135)

Of course, the ESA does not literally bar one from "resisting the loss of one's property"; by its terms, the Act prohibits only "takes."(136) Any means of protecting property that causes no "take" is lawful.(137) Still, it is certainly possible that in specific instances such ESA-consistent modes of defense, such as fencing and watchdogs, may not be effective, affordable, or legal under other laws.(138)

Non-ESA depredation cases in the federal courts all have reached the same no-taking conclusion as Christy, again despite government constraints on private defensive efforts.(139) No taking was found when wild horses protected under the Wild Free-Roaming Horses and Burros Act (WFHBA)(140) consumed private livestock forage;(141) When water sources on federal land, used for watering private livestock under federal grazing and range improvement permits, had to be shared with such horses;(142) when compelled removal of a fence would lead to minimal competition for forage between a rancher's cattle and pronghorn antelope;(143) or when geese protected under the Migratory Bird Treaty Act damaged privately owned crops.(144) Not surprisingly, no taking was found in a case where no restrictions on defensive measures were claimed, involving the United States' alleged failure to control the prairie dog population on certain federal lands, resulting in migration onto private ranches and farms.(145) Most State court decisions, typically involving hunting bans on game animals, also deny relief for harm to private property,(146) although their precedential value for takings adjudication under the ESA seems limited.(147)

Perhaps the most compelling case for a taking through restrictions on property defenses occurs when protected animals are introduced into an area by the government. Instances include the reintroduction of red wolves into North Carolina and proposals to reintroduce gray wolves into the Yellowstone ecosystem and Mexican wolves near the Texas-Mexico border.(148) Whether introduced predators thereby become "instrumentalities of the government" for taking purposes was an issue expressly left open in Christy.(149) In this regard, might it be relevant also that the animals are reintroduced into their historic range, rather than a completely new area--the government-instrumentality argument possibly being stronger in the latter event? And even in the absence of government introduction, might government intervention to increase the population of a listed species undercut the Christy noninstrumentality stance?(150) Can an animal that is heavily managed within its critical habitat (i.e., immunized, fed, tagged) be regarded as "controlled" by the federal government, and hence not under Christy?

The government relocation issue left dangling in Christy has received scant judicial attention.(151) The only modem treatment appears to be in a recent suit contending that the State of California took the plaintiffs ranch by relocating a band of Tule elk onto nearby state-owned land.(152) The elk allegedly occupied the ranch almost continuously, ate crops raised for the rancher's livestock, and damaged fences - while the rancher claimed that he was prevented from taking adequate protective measures under state law.(153) Answering the Christy "instrumentalities of the government" query in the negative, a state court spumed the physical taking claim, and declined on procedural grounds to consider plaintiffs regulatory taking theory.(154) In this case at least, government intervention did not undermine the animals' ferae naturae status because the state only briefly reduced the wild animals to possession, exercised no control after relocation,(156) and employed the animals' historic range.

While taking actions are undeniably the landowners' weapon of choice in the defense-of-property category, other legal swords have been drawn. For example, the Christy court also found no due process violation, discerning no "fundamental right" in the U.S. Constitution to protect livestock from protected predators that would subject the ESA "taking" ban to strict scrutiny.(156) Although relying chiefly upon the Supreme Court's reluctance to enlarge the list of fundamental rights under the Due Process Clause, the court also noted that nothing in the ESA prevented the rancher from fencing out grizzlies or driving them away by nonharmful means, and that as a last resort a FWS special rule allows government agents to "take" nuisance bears.(157)

A suit based upon another alternative, the Federal Tort Claims Act (FTCA), met the same fate.(158) Plaintiffs theory was that by protecting migratory waterfowl under the Migratory Bird Treaty Act, the United States became responsible for their feeding on privately owned crops. The court disagreed, holding that because individuals cannot be held liable under ferae naturae for the trespasses of animals in a state of nature, neither, under the FTCA, can the United States.

C. Limits On Commercial Dealings In Species Acquired Prior To Listing

If an animal or plant, or item made therefrom, is acquired prior to listing under the ESA, the fact of listing may well frustrate commercial expectations based on projected sale of those species or items. Exotic animals imported prior to listing for the purpose of commercial resale are an obvious example.

1. ESA Provisions

ESA section 9 prohibitions include many that bar commercial dealings in endangered species.(159) For example, it is unlawful to import, export, or transport interstate in the course of commercial activity any listed animal or plant.(160) From the animal or plant owner's point of view, the rub is that the ESA contains no general grandfather clause from section 9 prohibitions for species members or items acquired before listing. Moreover, the insertion of several narrowly defined grandfather provisions in the Act supports the view that Congress intended no broader exemption.(161) The absence of general grandfathering authority creates the potential for property value loss when specimens acquired before listing lose commercial utility as the result of listing.

Of the limited grandfather clauses in the ESA, the one most likely to prove useful to the commercial dealer is the "hardship exemption."(162) A person may apply for this exemption when the government publishes notice that a species is being considered for listing as endangered, if she has previously entered into a contract regarding such species and listing will cause her "undue economic hardship."(163) Granting of the exemption by the Secretary is discretionary, however, and limited to one year from the listing notice's publication.(164) Specimens owned before listing that are not involved in commercial activity,(165) and sperm whale oil and scrimshaw lawfully held as of the 1973 enactment of the ESA,(166) also have grandfather provisions.

2. Case Law

Only two federal court decisions address the limits on commercial dealings in previously acquired animals, each court finding no taking.(167) As noted below, there is little prospect that future takings challenges under this rubric will fare any better.

In United States v. Kepler, the only ESA case to address this question, no taking was found by the ESA's ban on interstate transport of listed animals that were allegedly held lawfully as of the ESA's enactment.(168) The court reasoned that the ESA barred sales of the listed animals only in interstate and foreign commerce, allowing sales in intrastate commerce and (when approved by the Secretary) for scientific and species-propagation purposes. Thus, listing did not completely destroy the value of the animals and no taking was effected.

Notably, the commercial-dealings category includes Andrus v. Allard, the only U.S. Supreme Court taking decision dealing with wildlife protection.(159) Allard addressed the Eagle Protection Act(170) and the Migratory Bird Treaty Act,(117) which banned commercial transactions in bird parts even if they were lawfully acquired prior to the ban's effective date. The Court found no taking by the ban, explaining that while it foreclosed the most profitable use of the plaintiff s bird parts, other uses, including possession, transport, donation, or exhibition for an admissions charge, remained to plaintiffs.

Allard is one of the Supreme Court's most government-friendly taking decisions, hence its precedential value in a conservative Court at one time might have been questioned. Indeed, the justices themselves once debated its continued vitality.(172) Nonetheless, the Court appeared to endorse Allard in Lucas v. South Carolina Coastal Council,(173) one of the Court's most significant recent forays into regulatory takings.(174) Lucas asserted in dictum that due to government's traditionally high degree of control over commercial dealings in personal property, in contrast with land, a personal property owner must be aware that new regulations might render such property worthless.(175) The suggestion is that regulation of commercial dealings in personal property is rarely a taking. Most importantly, the case cited to illustrate the point was Allard.(176) In fight of Allard and Lucas, it is arguable that ESA restraints on commercial trading in protected species acquired before listing can never effect a talking.

D. Federal Acquisition of Property to Conserve Habitat

Along with preserving protected species through prohibitions on private and government conduct, the ESA contemplates the less contentious approach of preserving species through land acquisition. In contrast to regulatory constraints, land acquisition affords the property owner immediate and tangible value, in money or in kind, though contingent upon conveyance of some interest in the parcel.

1. ESA Provisions

ESA section 5 directs the Secretaries of Interior, Commerce, and Agriculture to establish programs for conserving wildlife and plants, including those listed as endangered or threatened.(177) To carry out the program, each Secretary is directed to use land acquisition authorities in existing statutes, and is given additional broad land-acquisition authority "to acquire by purchase, donation, or otherwise, lands, waters, or interest therein . . . ."(178) While this phrase explicitly embraces only non-coercive modes of property acquisition, sound argument points to its inclusion of condemnation authority as well.(179)

2. Case Law

Section 5 has received judicial attention chiefly in addressing whether states and their political subdivisions may condition federal acquisition of land under that provision. In Sierra Club v. Marsh,(180) the court said no, at least where the conditions would prevent the federal acquisition or, if allowing it to occur, would render it meaningless.(181) The Supreme Court has issued similar holdings concerning federal land acquisition authorities under the Migratory Bird Conservation Act(182) and Migratory Bird Hunting stamp Act.(183)

III. Cross-Cutting Issues

Several issues, including some fundamental ones, reach beyond the bounds of any one category described earlier. As in the case law already discussed, courts have resolved these issues in ways that, by and large, cut against finding the ESA to effect takings.

A. Physical Taking or Land-Use Regulation?

Wildlife protection laws such as the ESA stand alongside a few other types of government action in their conduciveness to both physical and regulatory taking claims.(184) Plaintiffs often assert that wildlife laws should be viewed as causing a permanent physical occupation of land by members of the protected species, or as causing an appropriation of consumed livestock and forage.(185) Completing the argument, they adduce a rationale as to why actions of wild animals should be laid at the government's doorstep.(186) At least in the limitations-on-defensive-measures cases (e.g., where the protected bear kills one's sheep), attribution seems to be the only real obstacle for plaintiffs. Takings law has long been intolerant of coercive government occupation and appropriation of property, allowing little room for factors such as the minor extent of interference or the importance of the government interest to deflect the taking claim.(187) Thus, if the government attribution hurdle can be surmounted in a few cases, subsequent plaintiffs will find it easy going.

By contrast, if ESA strictures are viewed as a type of landuse regulation, takings law raises a difficult factual barrier that each plaintiff must relitigate anew--proving total or near-total reduction in the value of the property viewed as a whole.(188) One suspects that in the overwhelming majority of cases, such a showing cannot be made, since non-"take" economic uses of plaintiffs tract remain. More narrowly, dictum in Lucas asserts that even with total value loss, government measures "perhaps" cannot be a talking where they "destroy[] the value of land without being aimed at land," as contrasted with regulation "specifically directed to land use."(189) If so, many ESA limitations on private defensive measures, not being "aimed at land," may be constitutionally noncompensable with respect to their regulatory impact on real estate value.(190)

Most courts wrestling with takings challenges to the ESA and other federal wildlife statutes have spumed the physical talkings approach, opting to use the test for land-use regulation.(191) Courts differ, however, on precisely why physical takings theory is inappropriate. The defense-limitation cases (one, Christy, involving the ESA) target the extent of government management or protection over the injury-causing animals, finding it insufficient to impute the animals' conduct to the United States.(192) In sharp contrast, the direct-control cases, Southview and Rotiua, entirely bypass the extent of species management and instead analyze whether a physical taking existed based upon the spectrum of property rights left to the plaintiffs in the face of the invading animals.(193) It is not clear whether the divergent approaches of these cases can be entirely attributed to the different nature of the challenged government actions.

B. Government's Non-Ownership of Wildlife, but Special Relation Thereto

Courts have declared that the United States does not own the wildlife on federal lands;(194) indeed, wildlife is never the private property of those whose lands it occupies.(195) More broadly, wildlife is never owned at all. Rather, the ownership language used by the Supreme Court until recently has been called a legal fiction "expressive of the importance to its people" that a state have broad power to regulate wildlife in the public interest.(196) These two facets, nonownership and special relation, are discussed in turn.

1. Nonownership

Federal wildlife taking cases, as most state cases, infer from the absence of traditional government ownership of wildlife (and from absence of control) that government is not accountable for the acts of wildlife.(197) Nonownership, however, may not excuse all governmental sins, as noted in connection with government relocation of animals which then inflict injury upon private land.(198) Supreme Court taking decisions regarding physical invasions have never insisted that the invading agent be government property.(199) The Takings Clause only requires a sufficient causational nexus between government act and property impact.(200)

The rule that land ownership does not extend to the wildlife thereon has a further consequence: the marauding grizzly bear does not become the property of the rancher when it runs onto his land. Thus, the rancher cannot argue that the ESA brings about a taking by denying the rancher free use of his property interest in the bear.

To sidestep the wildlife nonownership obstacle, the landowner might be tempted to argue for a property right ratione soli,(201) asserted against the government, in the very act of hunting or "taking" wildlife. The majority view, however, recognizes this common-law right only as an exclusivity in the owner of land, as against other persons (typically trespassers), to pursue the wild animals found there; it is at all times subject to the state's "ownership" exercised through regulation or preservation.(202) Almost certainly, then, federal courts would regard the ability to hunt on one's land as just another strand in the property owner's bundle of property rights, with the result that remaining lawful uses of the property vitiate the taking claim.(203)

2. Special Relation

The special interest of the states in managing wildlife for the public good has ancient roots in medieval English law.(204) In the special case of species preservation through the ESA, Congress has elevated the government's interest to "the highest of priorities."(205) However, the extent to which this unique nexus may tip the takings balance towards government is as yet unclear.(206) Early signals from the few federal cases suggest that regulation in the name of wildlife protection--even to avert extinction--will continue to be evaluated for takings under the same standards as other government action affecting property.

Lucas appears to endorse this view that the special status of species preservation does not trigger absolute exemption from takings liability.(207) In that decision, the Court specifically noted conservation of endangered species habitat as an example of a governmental purpose easily characterized as both prevention of public harm (traditionally said to be noncompensable) and creation of public benefit (often held compensable), in the course of debunking the harm-benefit distinction generally.(208) At the very least, then, species preservation programs may not be able to rely on the harm-prevention argument to circumvent the case-by-case balancing customarily required in taking cases. In addition, Lucas is quite explicit that its rule of per se compensability for regulatory "total takings"--complete elimination of a parcel's economic uses--applies regardless of the public interest advanced as justification for the restraint.(209)

Other facets of Lucas, however, open the door for new wildlife protection elements to enter the traditional takings analysis. Carving a mammoth exemption to its per se rule, the Lucas Court pronounced that total takings are not compensable when the frustrated designs of the landowner are inconsistent with "background principles of the State's law of property and nuisance" existing when the property was acquired.(210) More succinctly, the Constitution does not demand payment when a regulation takes away a right the property owner never had. Lucas thus fundamentally defines the quantum of property interests afforded Fifth Amendment protection, and does so in a manner that logically cannot be confined to total takings,(211) or, for that matter, to regulatory takings.(212) Under this view, the historical involvement of states in wildlife regulation, if accepted as "background principles," may substantially curtail the already limited ability of property owners to prove takings in the species preservation area.(213) If the ESA and other federal enactments are similarly embraced as background principles, the landowner may have an additional barrier to Surmount.(214)

Aside from invocation of state law under Lucas, there is little indication that the U.S. Court of Federal Claims would entertain an extension to wildlife of certain other property law doctrines. One commentator calls for an extension of the traditionally water-based public trust doctrine to wildlife.(215) Indeed, in a 1980 decision involving pollution damage to migratory waterfowl, a federal district court asserted that "[u]nder the public trust doctrine, the State ... and the United States have the right and the duty to protect and preserve the public's interest in natural wildlife resources."(216) However, this doctrine has played only an implicit role in federal wildlife takings cases.(217) Particularly novel would be recognition of a wildlife servitude in the federal government, comparable to its navigation servitude, under which federal wildlife protection (at least efforts to avert extinction) would lie mostly beyond Fifth Amendment reach.(218) A few state court opinions do support a notion akin to a state wildlife servitude in the sense of a shield from taking liability,(219) but apparently no court decision even broaches this idea as to the federal government.

C. Requirements for Affirmative Action or Expense

For purposes of takings analysis, it should make little difference whether the ESA impact is prohibitory (barring harmful activity by the property owner) or mandatory (requiring that the property owner affirmatively act to lessen or offset the harm that otherwise would be caused). Each scenario asks the property owner to address a harm that her own activity would create and thus seems to satisfy the "fairness and justice" element that undergirds takings jurisprudence.(220) Also implicit in "fairness and justice" is that the affirmative burden on the landowner be proportional to the harm that her proposed action might have, a relationship that may soon be given more precise definition by the Supreme Court in Dolan v. City of Tigard.(221) Still further, "fairness and justice" suggests that a taking would be more probable if the landowner was financially burdened to protect listed species from instrumentalities not under her control, such as the curious public.(222)

Affirmative requirements under the ESA may take the form of land dedication and mitigation requirements contained in HCPs.(223) Another affirmative requirement, that shrimp trawlers use "turtle excluder devices" in their nets to protect endangered and threatened sea turtles, provoked a taking suit dismissed on jurisdictional grounds.(224)

D. Benefits to the Property Owner from the ESA

On occasion, the discovery of a listed species on or near private land conceivably may generate benefits for the property owner beyond those received as a member of the public.(225) For example, ESA restrictions on private property use might produce offsetting benefits for other uses of the land, as by enhancing its tourist value for rare bird watching. Such positive impacts, assuming they occur, are plainly relevant to the Fifth Amendment analysis.(226)

E. Supreme Court Endorsement of Wildlife Protection Generally

In recent decades, the High Court has consistently embraced wildlife protective arguments in construing federal protection statutes. In addition to the Allard(227) decision, the Court has held that creation of a national monument reserved sufficient water rights to preserve a unique desert fish,(228) found the "jeopardy" ban of ESA section 7 (as then worded) so absolute as to halt a nearly completed dam that might endanger a listed species,(229) and upheld the WFHBA protecting feral horses and burros on both public and private lands.(230) At a minimum, these cases indicate that the Court accepts wildlife protection as a legitimate governmental objective that can support reasonable interference with private rights.

IV. LEGISLATIVE OPTIONS

Whether Congress will address the ESA-property rights issue depends on several factors. As a threshold matter, how significant the real-world collision between the ESA and landowner aspirations is revealed to be in reauthorization hearings is plainly relevant. Or, as now seems almost certain, Congress may accede to the Administration's desire to defer reauthorization until new initiatives are implemented to enhance the ESA's ability to accommodate development pressures through mechanisms already in the Act.(231) Recent deliberations in the House of Representatives on creation of a National Biological Survey, culminating in the adoption of several property-rights amendments, are widely viewed as foreshadowing a property rights melee if the ESA is brought up soon.(232)

At a minimum, understanding the political debate requires appreciating that the concern over property rights, on and off Capitol Hill, reaches far beyond the taking issue. Because the prosecution of a taking claim may be costly and the thresholds of takings law are difficult to meet, congressional standard-bearers of the property rights movement appear to take little comfort from the open door of the U.S. Court of Federal Claims.(233) Rather, they seek to prevent property impacts under the Act from occurring in the first place. To the extent that impacts nonetheless occur, some members seek a standard of compensation more liberal than current constitutional law allows.(234)

Should Congress undertake to amend the ESA, certain options within the existing framework of the Act seem obvious. One possibility is to do nothing, implicitly embracing the Fifth Amendment standard of compensation as adequate. The landowner would thus remain in the same position under the ESA as under other federal statutes that have figured prominently in the property rights debate, none of which now provides for extraconstitutional compensation. This option might be sweetened for property rights members by adding incentives for private landowners to conserve species.(235) The opposite tack is to lower the compensation threshold and provide monetary relief to offset property value losses caused by the ESA, whether or not constitutionally compelled. Another approach is to tinker with the administration of existing ESA mechanisms, as by mandating prior evaluation of the private property implications of agency actions,(236) giving landowners prior notice of what activities constitute a "take," or encouraging more aggressive use of developmental safety valves already in the ESA.(237) The most substantively major choice is to adjust the ESA's listing or protection standards so as to strike a balance more favorable to private property interests.

Pending bills to amend the ESA embody several of these options. Two similar bills introduced by the chairmen of the jurisdictional committees would allow landowners to learn in advance whether a proposed activity was a "taking," authorize HCPs for candidate species (so that post-HCP listings do not change the ground rules for the landowner), require greater recovery efforts but with reduced economic consequences, and authorize the Secretary to compensate landowners who undertake non-mandatory species protection measures as a private conservation incentive.(238)

A competing pair of comprehensive bills that more aggressively address property rights concerns has also been introduced.(239) Among other property-oriented measures, this legislation would allow persons to obtain written opinions from the Secretary specifying legally protected alternatives to proposed activities on private land, and would authorize general permits exempting activity categories that minimally impact a listed species. The provision that is most likely to be controversial would give a property owner a statutory right to compensation for specified federal actions under the ESA that substantially eliminate the economically viable use of property.

V. SUMMARY AND CONCLUSION

It has been said that while property rights are well analyzed in our legal and moral tradition, our legal and ethical duties to endangered species are novel and not universally accepted.(240) Foregoing development of private land that might harm a public g water source is a sacrifice most landowners might accept; having one's livelihood disrupted to preserve an endangered bird is a tougher call. The Endangered Species Act "is visionary, and implementing it is forcing seminal rethinking in both law and ethics."(241) Indeed, our very concept of what constitutes property is involved. (242)

Given this ongoing debate and the paltry number of ESA takings cases, prediction of how the ESA may fare in any future takings litigation might seem premature.(243) Compounding the difficulty is the case-by-case nature of takings adjudication and the unknown degree of flexibility with which the FWS and NMFS will execute their charge. Despite these uncertainties, one can expect that even more than with government impacts on property generally, the great majority of ESA impacts will be constitutionally noncompensable. For direct limits on land use under the ESA, the property owner faces the daunting hurdles of proving ripeness and almost total elimination of economic use of the entire parcel.(244) Assuming agency flexibility, such near-total loss with respect to a parcel as a whole would seem unlikely under ESA restrictions. For ESA limitations on defending property against animal depredations, Christy finds no taking, and all cases under other federal wildlife statutes hold similarly.(245) Persuading a court to find a per se taking because of a permanent physical occupation by the harmful animals seems unpromising.(246) The only solid prospects for property-owner compensation may be in narrow, special circumstances, such as when property damage is caused by governments-introduced animals, against which no adequate defense is allowed.(247) Finally, for transactional restraints on captive species members (and items made therefrom) obtained prior to listing, Allard and Lucas suggest an almost absolute rule against compensation.(248)

To be sure, imponderables could alter this government-friendly picture. For one, the Supreme Court's hint in Lucas that it might qualify its current rule that parcels be viewed as a whole could significantly enhance a property owner's prospects.(249) A taking might then result from regulatory elimination of economic use on only a portion of one's land. Second, the Court conceivably could resolve Dolan in a manner that significantly enhances judicial scrutiny of the dedications and mitigation conditions routinely incorporated into HCPS.(250) And third, the takings jurisprudence of the Federal Circuit Court of Appeals, with jurisdiction over most ESA takings claims, may continue to evolve in a plaintiff-friendly direction.(251) Notwithstanding these tectonics, any wholesale judicial abandonment of the general deference accorded government by takings jurisprudence is improbable.

In response to the difficulty of winning takings suits, property rights advocates pursue three broad objectives: adoption of formal procedures for assessing the takings implications of proposed agency actions, programmatic adjustments to minimize private property impacts, and extra-constitutional compensation when impacts nonetheless occur. Extraconstitutional compensation is arguably the most radical policy precedent of the three. Assessment of takings implications is already being done.(252) Adjustments in a program statute to reflect a new balancing of competing interests is a legislative body's routine fare. By contrast, compensating property owners for sub-constitutional impacts of species preservation, if not tightly limited, has troublesome implications for other environmental laws as well as the many nonenvironmental federal programs that make up the lion's share of federal takings litigation.(253)

Congress, for its part, must decide whether to statutorily address the ESA property rights question. Initiatives now under consideration by the Interior may reap improved relations with landowners under existing ESA authorities, thus obviating a legislative response. In either case, a broad response to the ESA property rights issue is preferable to sole reliance on the courts, given the time, expense, and unpredictability of takings litigation.(254) Of course, no ameliorative effort by the political branches that remains true to the statute's current species conservation goals will satisfy all property owners all the time. Thus the courts, using the Fifth Amendment, seem destined to be players as they define the line between public goal and constitutional right. (1.) Endangered Specie, Act Of 1973, 16 U.S.C. [subsections] 1531-1544 (1988). (2.) See, e.g., Michael S. Greve, The Endangered Species Act (1991), in Takings and the Environment. The Constitutional Canons of Environmental Regulation (Federalist Society, 1992); Ike C. Sugg, Caught in the Act: Evaluating the Edangered Species Act, Its Effects on Man and Prospects for Reform, 24 Cumb. L Rev. 1 (1993-94); Thomas Lambert and Robert J. Smith, The Endangered Species Act; Time for a Change (Center for the Study of American Business, 1994). Often cited by those urging some retrenchment in the ESA's protections is the Supreme Court's statement that Congress' intent in the Act was to avert species extinction "whatever the cost." TVA v. Hill, 437 U.S 153, 184 (1978). (3.) Conservation of Biological Resources: Hearing Before the House Comm. on Merchant Marine and Fisheries, 103d Cong., 1st Sess. 67 (1993). Secretary of the Interior Bruce Babbitt testified that "it is possible under current law to protect threatened and endangered species without halting economic development." Id. See Bruce Babbitt, The Public Interest in Western Water, 23 Envtl. L. 993 (1993). One commentator concludes that through loose, discretion-enhancing interpretation of the ESA, responsible federal agencies have been able to avoid conflict under the Act "to an extraordinary degree." Oliver A. Houck, The Endangered Species Act and Its Implementation by the Departments of Interior and Commerce, 64 Colo. St. L Rev. 277, 358 (1993). (4.) ESA [sections] 2(a)(3), 16 U.S.C. [sections] 1531(a)(3) (1988). (5.) At least in theory, the ESA on occasion may also produce benefits to the property owner over and above those enjoyed as a member of society. See infra text accompanying note 224. (6.) U.S. Const. amend. V: "[N]or shall private property be taken for public use, without just compensation." While the Supreme Court has handed down regulatory takings decisions since 1922, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, it did not embark upon a sustained effort to articulate criteria, influential factors, and per se rules to guide the regulatory takings analysis until 1978. Penn Central Transp. Co. v. New York City, 438 U.S. 104. (7.) See, e.g., President's Council on Competitiveness Fact Sheet (May 7, 1991) (endorsing property rights legislation). (8.) Exec. Order No. 12,630, 3 C.F.R. 554 (1988), reprinted in 5 U.S.C. [sections] 601 note (1988). (9.) See, eg., Christy v. Hodel, 857 F.2d 1324, 1328-31, cert. denied, 490 U.S. 1114 (1989). (10.) See, eg., Sickman v. United States, 184 F.2d 616 (7th Cir. 1950), cert. denied, 341 U.S. 939 (1951). (11.) See, e.g., Barrett v. State, 220 N.Y. 423, 116 N.E. 99 (1917). (12.) 16 U.S.C. [subsections] 703-12 (1988) (Supp. 1989). See, e.g., Bishop v. United States, 126 F. Supp. 449 (Ct. Cl. 1954), cert. denied, 349 U.S. 955 (1955). (13.) 16 U.S.C. [subsections] 668-668d (1988). See, e.g., Andrus v. Allard, 444 U.S. 51 (1979). (14.) 16 U.S.C. [subsections] 1331-1340 (1988). See, eg., Mountain States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir. 1986), cert. denied, 480 U.S. 851 (1987). (15.) Pub. L. No. 89-669, [subsections] 1-3, 80 Stat. 926 (repealed 1973). For a brief account of the ESA's evolution, see Michael J. Bean, The Evolution of National Wildlife Law ch. 12 (rev. ed. 1983). (16.) Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (1973) (codified as amended at 16 U.S.C. [subsections] 1531-1544 (1988)). (17.) ESA [sections] 4, 16 U.S.C. [sections] 1533 (1988). (18.) ESA [subsections] 3(15), 4(a); 16 U.S.C. [subsections] 1532(15), 1533(a) (1988). (19.) ESA [sections] 3(16), 16 U.S.C. [sections] 1532(16) (1988). (20.) ESA [sections] 4(b)(1)(a), 16 U.S.C. [sections] 1533(b)(1)(a) (1988). (21.) ESA [sections] 4(a)(3), 16 U.S.C. [sections] 1533(a)(3) (1988). (22.) ESA [sections] 4(b)(2), 16 U.S.C. [sections] 1533(b)(2) (1988). See 50 C.F.R. [sections] 424.1 (1992). (23.) Id. In actual practice, the FWS has formally exercised this option of excluding territory from designated critical habitat for economic reasons only once, in the case of the northern spotted owl. Telephone interview with Sandra MacPherson, Wildlife Biologist, Division of Endangered Species, U.S. FWS (Mar. 29, 1994). It appears, however, that the FWS often considers economic impacts informally as it develops its initial critical habitat proposal. See, eg., Determination of Critical Habitat for the Colorado River Endangered Fishes, 59 Fed. Reg. 13,374, 13,390 (1994). (24.) Explains a pertinent committee report;

Whether a species has declined sufficiently to justify listing is a biological,

not an economic, question. For this reason, the [House Committee

on Merchant Marine and Fisheries] eliminated all economic considerations

from the species listing process. Desirous to restrict the

Secretary's decision on species listing to biology alone, the Committee

nonetheless recognized that the critical habitat designation, with its attendant

economic analysis, offers some counterpoint to the listing of

species without due consideration for the effects on land use and other

development interests. For this reason, the Committee elected to leave

critical habitat as an integral part of the listing process, but to prevent

its designation from influencing the decision on the listing of a species. H.R- Rep. No. 567, 97th Cong., 2d Sess. 12 (1982). See also H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. 19 (1982). (25.) ESA [sections] 9, 16 U.S.C. [sections] 1538 (1988). A violator of ESA section 9 prohibitions is subject to civil and criminal penalties. ESA [sections] 11, 16 U.S.C. [sections] 1540 (1988). (26.) ESA [sections] 9, 16 U.S.C. [sections] 1538 (1988). These prohibitions apply broadly to "any person subject to the jurisdiction of the United States." Id. (27.) ESA [sections] 9(a)(1), 16 U.S.C. [sections] 1538(a)(1) (1988). (28.) ESA [sections] 9(a)(2)(b), 16 U.S.C. [sections] 1538(a)(2)(b) 1988). Except as provided in sections 1535(g)(2) and 1539 of this tide, with respect to any endangered species of plants listed pursuant to 1533 of this title, it is unlawful for any person subject to the jurisdiction of the United States to remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law. Id. (29.) To avoid such confusion, the taking of private property under the Fifth Amendment of the Constitution is indicated in this article by absence of quotation marks; the "taking" of listed species under the ESA is indicated by the presence of same. Constitutional takings are also denoted by the term "inverse condemnations." (30.) ESA [sections] 10(a)(1)(b), 16 U.S.C. [sections] 1539(a)(1)(b) (1988). The provision for incidental "taking" permits exempting landowners (and federal agencies) from section 9 was added in 1982 to resolve an asymmetry between section 9 and section 7. Prior to that year, only section 7, applicable to actions of federal agencies and discussed later, allowed incidental "takes." This meant that a landowner or federal agency had no assurance that an incidental and unintentional "taking" envisioned under a section 7 consultation would not be prosecuted under section 9, which bars any "taking." In addition, landowner proposals requiring no federal permits, and thus not falling under section 7, could not avail themselves of incidental "taking" immunity at all. Adding an incidental "take" exception to section 9 solved both problems. H.R. Rep. No. 567, 97th Cong., 2d Sess. 15 (1982). (31.) ESA [sections] 10(b), 16 U.S.C. [sections] 1539(b) (1988). (32.) ESA [sections] 10(a)(2)(a); 16 U.S.C. [sections] 1539(a)(2)(a) (1988). (33.) Id. (34.) ESA [sections] 10(a)(2)(b); 16 U.S.C. [sections] 1539(a)(2)(b) (1988). (35.) 50 C.F.R. [sections] 17.31 (wildlife), [sections] 17.71 (plants) (1992). The NMFS, on the other hand, adopts section 9's endangered species prohibitions for threatened species only on a case-by-case basis. See, eg., 50 C.F.R. [sections] 227.21(a) (chinook salmon) (1992).

The authority for extending section 9 prohibitions to threatened species is in ESA section 4(d), allowing the Secretary to regulate such species "as ... necessary and advisable to provide for the conservation of [the] species." 16 U.S.C. [sections] 1533(d) (1988). The United States Court of Appeals for District of Columbia Circuit has upheld the FWS's extension of section 9 prohibitions to threatened wildlife on a categorical, rather than species-by-species, basis. Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 1 F.3d 1, 5-8 (1993), modified on other grounds, 17 F. 3d 1463 (D.C. Cir. 1994). (36.) 50 C.F.R. [subsections] 17.40-17.48 (1992). (37.) 16 U.S.C. [sections] 1536 (1988). (38.) ESA [sections] 7(a)(2), 16 U.S.C. [sections] 1536(a)(2) (1988). (39.) ESA [sections] 7(b), 16 U.S.C. [sections] 1536(b) (1988). (40.) ESA [sections] 7(b)(4), 16 U.S.C. [sections] 1536(b)(4) (1988). (41.) ESA [sections] 10(a)(2)(b), 16 U.S.C. [sections] 1539(a)(2)(b) (1988). (42.) ESA [sections] 7(a)(4), 16 U.S.C. [sections] 1536(a)(4) (1988). (43.) ESA [sections] 7(e), 16 U.S.C. [sections] 1536(e) (1988). (44.) 16 U.S.C. [sections] 1533(f) (1988). (45.) Id. (46.) ESA [sections] 4(f)(1)(b), 16 U.S.C. [sections] 1533(f)(1)(b) (1988). (47.) In Hawaii Audubon Society v. Lujan, No. 91-00191 (D. Hawaii filed Apr. 4, 1991), plaintiffs sought to compel the FWS to enter upon a private ranch in Hawaii, without the owner's consent if necessary, to seize |Alala eggs and/or birds for the state's endangered species propagation facility. Removal of such eggs and birds had been proposed in a 1982 recovery plan for the |Alala (Hawaiian Crow). Plaintiffs argued that nonconsensual entry was permitted under section 4(f) and the duty imposed by various ESA sections to "conserve" endangered species, and also by the common-law doctrine of necessity. The world was deprived of a judicial pronouncement on this issue, however, when the parties agreed to settle shortly after the case had been argued on cross motions for summary judgment and submitted. Telephone interview with Mr. Michael Sherwood, Staff Attorney, Sierra Club Legal Defense Fund (representing plaintiffs) (Mar. 30, 1994). (48.) See, e.g., U.S. Dep't of Justice, Memorandum in Support of Federal Defendants' Motion to Dismiss, submitted in Hawaii Audubon Society v. Lujan, No. 91-00191 (D. Hawaii filed Apr. 4, 1991). The memorandum notes further that the "FWS consistently has taken the position that ESA recovery plans serve as guidance documents prepared to assist in managing and conserving listed species under the ESA, but are not in themselves specific proposals to undertake federal agency actions." Id, See also Endangered and Threatened Species Listing and Recovery Priority Guidelines, 48 Fed. Reg. 43,098, 43,103 (1983) (describing recovery plans as "guiding documents"). (49.) See, eg., H.R. Rep. No. 567, 97th Cong., 2d Sess. 15 (1982). (50.) ESA [sections] 10(a)(2)(a), 16 U.S.C. [sections] 1539(a)(2)(a) (1988). (51.) See, e.g., James S. Burling, Property Rights, Endangered Species, Wetlands, and Other Critters--Is It Against Nature to Pay for a Taking?, 27 Land & Water L. Rev. 309, 321-22 (1992); Florence Williams, Landowners Turn the Fifth into Sharp-Pointed Sword, High Country News, Feb. 8, 1993, at 1. (52.) ESA [sections] 3(19), 16 U.S.C. [sections] 1532(19) (1988). (53.) 50 C.F.R. [sections] 17.3 (1992) (second emphasis added). The NMFS has not yet promulgated a "harm" definition of its own. (54.) One of the ESA's stated objectives is the conservation of "the ecosystems upon which endangered species and threatened species depend . . . ." ESA [sections] 2(b), 16 U.S.C. [sections] 1531(b) (1988). This goal is embodied in the designation of critical habitat. ESA [sections] 3(5), 16 U.S.C. [sections] 1532(5) (1988). The legislative history of the 1973 enactment of the ESA contains several indications of Congress' awareness that loss of habitat is a principal cause of extinction. See, e.g., S. Rep. No. 307, 93d Cong., 1st Sess. 2 (1973); H.R. Rep. No. 412, 93d Cong., 1st Sess. 2 (1973). See also TVA v. Hill, 437 U.S. 153, 179 (1978). (55.) 50 C.F.R. [subsections] 17.11, 17.12 (1992). (56.) U.S. General Accounting Office, Endangered Species Act: Types and Number of Implementing Actions 39 (GAO/RCED-92-131BR 1992). (57.) See supra note 2. (58.) ESA [sections] 9(a)(1)(b), 16 U.S.C. [sections] 1538(a)(1)(b) (1988). See, e.g., Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988) (logging practices of Forest Service harmed habitat of endangered red-cockaded woodpecker, and thus effected a taking even though habitat was not designated as critical), aff'd in part, vacated in part sub nom. Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991). (59.) The spectrum of scholarly opinion is represented by Rudy R. Lachenmeier, The Endangered Species Act of 1973. Preservation or Pandemonium, 5 Envtl. L. 29, 39-41 (1974) (concluding that the taking prohibition was not intended to reach habitat modification); BEAN, supra note 15, at 343 n.116 (recalling that the original edition of this work "acknowledged that there were forceful arguments" in favor of the noninclusion of habitat modification); and Katherine S. Yagerman, Protecting Critical Habitat Under the Federal Endangered Species Act, 20 Envtl. L. 811, 847 (1990) (arguing that since Congress left the relevant ESA sections unchanged through several amendments to the act since Palila, it must not disapprove of the habitat-inclusive definition of "harm" endorsed in that litigation). (60.) 471 F. Supp. 985 (D. Haw. 1979), aff'd, 639 F.2d 495 (9th Cir. 1981). (61.) Id. (62.) Endangered and Threatened Wildlife and Plants; Proposed Redefinition of "Harm," 46 Fed. Reg. 29,490 (1981). (63.) Endangered and Threatened Wildlife and Plants; Final Redefinition of "Harm," 46 Fed. Reg. 54,748, 54,748 (1981) (codified at 50 C.F.R. [sections] 17.3 (1992)). (64.) Palila v. Hawaii Dep't of Land and Natural Resources (Palila II), 649 F. Supp. 1070, 1080 (D. Haw. 1986) (holding that the habitat degradation was "actually presently injuring" the Palila), aff'd, 852 F.2d 1106 (9th Cir. 1988). (65.) 649 F. Supp. at 1075. On appeal, the Ninth Circuit expressly declined to reach this issue. 852 F.2d at 1110. (66.) 1 F. 3d 1 (1993). (67.) 17 F. 3d 1463 (D.C. Cir. 1994). (68.) Id. at 1465. (69.) Id. at 1466. (70.) Id. at 1465. (71.) 17 F. 3d 1463 (D.C. Cir. 1994), petition for rehearing en banc docketed, No. 92-5255 (D.C. Cir. April 25, 1994). (72.) Bruce Babbitt, The Endangered Species Act and "Takings": A Call for Innovation Within the Term of the Existing Act, supra this volume, 24 Envtl. L. at 355 (1994). (73.) The impetus for the Administration's efforts stems in good measure from intractable ESA-related battles in the Pacific Northwest over old-growth logging and water resources development. (74.) ESA [sections] 10(a)(1)(b), 16 U.S.C. [sections] 1539(a)(1)(b) (1988). (75.) See, e.g., H.R. Rep. No. 567, 97th Cong., 2d Sess. 31 (1982). (76.) Robert D. Thornton, Searching for Consensus and Predictability. Habitat Conservation Planning Under the Endangered Species Act of 1973, 21 Envtl L. 605, 607 (1991). Thornton states:

Only a handful of HCPs have been approved since 1982. Several others

have failed outright or have floundered in a seemingly endless attempt

to reach consensus among disparate interest groups. There is growing

environmental opposition to HCPs which sanction the loss of habitat,

and calls for instituting a "no net loss" policy for endangered species

planning efforts . . . . The development community is growing increasingly

frustrated with the length of time required to resolve endangered

species conflicts through the HCP process and the inability of HCPs to

remove legal risks associated with the subsequent listing of species not

addressed in the HCP. Id. A prime factor contributing to the time taken by the FWS to approve HCPs is likely the preparation of environmental impact statements (EISs), which have accompanied many HCPs. Note that EIS preparation is required by the National Environmental Policy Act, not by the ESA. National Environmental Policy Act, 42 U.S.C. [sections] 4332(2)(C) (1988). (77.) Telephone interview with Mr. Bill Lehman, Wildlife Biologist, Division of Endangered Species, U.S. FWS (Jan. 10, 1994). In addition, 11 amendments to existing incidental "take" permits have been approved. Id, (78.) Recommendations for changing the HCP process are contained in Michael J. Bean et al., Reconciling Conflicts Under the Endangered Species Act: The Habitat Conversation Planning Experience (1991). See generally The Endangered Species Act: The Role of Habitat Conservation, Hearing Before the Subcomm. on Environment and Natural Resources of the House Comm. on Merchant Marine and Fisheries, 103d Cong., 1st Sess. (1993). (79.) Telephone interview with Mr. Marc Ebbin, Special Assistant to the Secretary, U.S. Department of the Interior (Apr. 7, 1994). (80.) 16 U.S.C. [sections] 1533(d) (1988). (81.)Tying in with state and local species preservation programs seems to be particularly in favor. Thus, the section 4(d) special rule for the threatened coastal California gnatcatcher provides that an incidental "take" of species members does not violate section 9 if it results from activities consistent with California's Natural Community Conservation Planning Act (NCCPA) and the NCCPA plan for protection of coastal sage scrub habitat. Special Rule Concerning Take of the Threatened Coastal California Gnatcatcher, 58 Fed. Reg. 65,088 (1993). The FWS determined that the NCCPA program and the ESA special rule will conserve gnatcatcher habitat in conformity with the ESA. Id. See also Notice of Intent to Prepare Environmental Impact Statement on a Proposed Rule for the Northern Spotted Owl, 58 Fed. Reg. 69,132 (1993) (timber harvesting m accordance with California law deemed to comply with federal incidental "take" rules); Threatened Status for the Louisiana Black Bear and Related Rules, 57 Fed. Reg. 588 (1992) (exempting incidental "takes" of such bears in the course of "normal forest management practices") . (82.) Interview with Mr. Marc Ebbin, supra note 79. (83.) ESA [sections] 4(b)(1)(a), 16 U.S.C. [sections] 1533(b)(1)(a) (1988). (84.) 16 U.S.C. [sections] 1535(c) (1988). (85.) In Swan View Coalition v. Turner, Inc., 824 F. Supp. 923, 938 (D. Mont. 1992), a forest industry group argued that two ESA provisions, sections 4(d) and 6(g)(2), must be read to mean that the federal law of "takes" does not apply in agreement states where the state has full authority. Although the court ruled to the contrary based upon the Act's preemption provision and overall species-preservation intent, it acknowledged that the industry group had raised "compelling arguments." Id. (86.) Clean Water Act [sections] 404, 33 U.S.C. [sections] 1344 (1988). Issuance of a permit by a federal agency notwithstanding failure of the proposed development to satisfy section 7 would also seem to violate section 9. The prohibitions of section 9 apply to any "person," defined by the Act to include federal agencies. ESA [sections] 3(13), 16 U.S.C. [sections] 1532(13) (1988). The issuance of the permit, if it led to adverse habitat modification, would arguably thus "take" affected species members. See Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988) (finding Forest Service's management practices resulted in precipitous decline of redcockaded woodpecker on Forest Service lands, and hence violated both ESA Sections 7 and 9), aff'd in part, vacated in part sub nom. Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991). (87.) U.S. General Accounting Office, Endangered Species Act: Types and Number of Implementing Actions 31-32 (GAO/RCED-92-131BR 1992). (88.) Application to the Endangered Species Committee has proven a time-consuming and unwieldy process, and has been used to completion only three times since the procedure was established in 1977. See generally Congressional Research Service, Endangered Species Act: The Listing and Exemption Processes (Rep. No. 90-242 1990). Appendix C of the report also details three instances when the exemption process was begun but not completed. (89.) ESA [sections] 7(o)(2), 16 U.S.C. [sections] 1536(o)(2) (1988). (90.) Indeed, as of April 1, 1994, there are no takings cases under the ESA pending in the U.S. Court of Federal Claims, the forum where taking claims against the United States must be filed when the amount in controversy exceeds $10,000. 28 U.S.C. [subsections] 1346(a)(2), 1491(a)(1) (1988). (91.) See, e.g., Hunt & Irvin, The Endangered Species Act: A Tough Law to Solve Tough Problems, 90 J. Forestry 17, 20 (Aug. 1992). (92.) Telephone interview with Ms. Nancie Marzulla, President and General Counsel, Defenders of Property Rights (March 31, 1994). (93.) See U.S. General Accounting Office, Clean Water Act: Private Property Takings Claims as a Result of the Section 404 Program (GAO/RCED-93-176FS 1993) (identifying twenty-eight cases in which a taking claim was Med in the U.S. Court of Federal Claims as of May 31, 1993 because of a regulatory action under Clean Water Act section 404). (94.) This doctrine, known variously as the "parcel as a whole' rule or the rule against segmentation, was firmly endorsed by the Supreme Court in 1978. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 130-31. Since then, however, a four-justice dissent in Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 506 (1987) (Rehnquist, J., dissenting) appeared to be accepting of segmentation, and the Court has gone out of its way to indicate interest in revisiting the issue. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2894 n.7 (1992). To confuse matters further, the Court's most recent regulatory taking decision strongly reaffirms the "parcel as a whole" rule. Concrete Pipe & Prods. of California, Inc. v. Construction Laborers Pension Trust, 113 S. Ct. 2264, 2290 (1993) (citing Penn Central, 438 U.S. at 130-31). Most likely, the Court is signalling that it might be receptive to qualification of the rule in a few special cases, such as when plaintiff owns noncontiguous parcels.

Quite recently, some erosion of the properly as a whole rule was suggested in a decision of the Federal Circuit Court of Appeals, the appellate court with jurisdiction over ESA taking claims against the United States. Florida Rock Indus., Inc. v. United States, No. 91-5156 (Mar. 10, 1994). There, the court held that individual interests in a tract of land might be considered separately in gauging whether a regulatory taking has occurred. Though articulated with reference to separate interests in a parcel rather than physical segments thereof, the court's reasoning seemingly could embrace physical segmentation without much stretch. (95.) Pennell v. City of San Jose, 485 U.S. 1, 10 (1988). (96.) See United States v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985). (97.) See Wilhamson County Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 187-91 (1985). (98.) MacDonald, Sommier & Frates v. Yolo County, 477 U.S. 340, 350-53 (1986), reh'g denied, 478 U.S. 1035 (1986). (99.) The determinations that the Endangered Species Committee must make before granting an exemption include that the proposed action is of "regional or national significance." ESA 7(h)(1)(A)(iii), 16 U.S.C. [sections] 1536(h)(1)(A)(iii) (1988). This quarter suggests that for many smaller federal-nexus projects, failure to apply to the Committee will not give rise to ripeness problems. (100.) In Bailey v. Holland, 126 F.2d 317 (4th Cir. 1942), the court discerned no taking in application of a Migratory Bird Treaty Act hunting ban to private land near a wildlife refuge, allegedly rendering the land almost worthless. The court explained, rather simplistically, that "[a]ny injury thus caused results from an exercise by the Government of its police power and not of its power of eminent domain." Id. at 324. (101.) See, e.g., Four Points Utility Joint Venture v. United States, No. 93-655 (W.D. Tex. filed Oct. 22, 1993) (alleging that the FWS and City of Austin have effected a taking by adopting policies and regulations, partly under the ESA, to keep a portion of developer's tract in its natural state). (102.) See, e.g., Boise Cascade v. State of Oregon, No. 93-2018 (Ct. App. filed Feb. 1, 1993) (claiming that state logging prohibition on 56 acres surrounding nesting spotted owls, listed by state agency as threatened under state law, has effected taking); Del Monte Dunes v. City of Monterey, 920 F.2d 1496 (9th Cir. 1990) (holding ripe for review a taking claim based on city's reduction of development proposal's density, partly to preserve habitat for threatened Smith's Blue Butterfly). (103.) A pending ESA citizen suit seeks to force a lumber company to obtain an incidental "take" permit under the ESA before cutting timber on its own land, based upon potential disruption of a nesting pair of spotted owls on nearby federal land. Forest Conservation Council v. Rosboro Lumber Co., No. 92-1114-HO (D. Or. Aug. 26, 1993) (unpublished) (ESA citizen suit cannot be maintained until conduct allegedly constituting "taking" has begun, unless extinction of species would result), appeal docketed, No. 93-35911 (9th Cir. Sept. 24, 1993). If such a permit is judicially required, applied for, and denied, a constitutional taking claim would seem to be ripe. (104.) See, e.g., Scribner v. U.S. Dep't of Interior, No. 93-613 (C.D. Cal. Oct. 26, 1993) (dismissing on jurisdictional grounds a taking CIM based on an alleged FWS threat of prosecution if farming harmful to the endangered Stephens Kangaroo Rat were not stopped). (105.) Water rights have long been held to be property for Takings Clause purposes. United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950); Ball v. United States, 1 C1. Ct. 180 (1982). Moreover, the ESA has been held to provide no exception from compliance to persons holding such rights. United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 1134 (E.D. Cal. 1992). ESA [sections] 2(c) establishes congressional policy that federal agencies 'cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species." 16 U.S.C. [sections] 1531(c) (1988). This exhortation, of course, does not qualify the Act's species preservation mandate. (106.) Susan M. Trager & Michele A. Staples, Water, Water Everywhere But . . . : Species Protection Regulations as Water Rights Takings after Nollan and Lucas, Cal. Water L. and Pol. Rptr. 23 (Nov. 1992). (107.) Determination of Critical Habitat for the Colorado River Endangered Fishes, 59 Fed. Reg. 13,374 (1994).

If the Upper Basin and San Juan Recovery Implementation Programs

... do not show sufficient and timely progress in recovering the

endangered fishes, some planned water developments may be modified,

scaled back, delayed, or foregone. Id. at 13,379. See also id. at 13,387. Notwithstanding, the FWS concluded that neither designation of this critical habitat, nor associated federal actions, is likely to create takings implications. Id. at 13,389. (108.) United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126 (E.D. Cal. 1992) (holding ESA compels issuance of injunction against the District's pumping from the Sacramento River during the winter-run chinook salmon's downstream migration); Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., 8 Cal. App. 4th 1554, 11 Cal. Rptr. 2d 222, 224 (1992) (issuing similar injunction under the California Endangered Species Act to protect winter-run salmon). See generally Trager et al., supra note 106. (109.) 980 F.2d 84 (2d Cir. 1992), cert. denied, 113 S. Ct. 1586 (1993). (110.) Id. The opinion defines "deeryard area" as "winter habitat for white-tailed deer," as identified on a state-prepared deeryard map. The deeryard in question, consisting of 280 acres, was found by the state to be the sole remaining, active deeryard within a 10.7 square mile area. Id. at 91. (111.) Id. at 92-95, citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-36 (1982). (112.) The Southview court seems to have erred in holding that the developer did not satisfy the government-compulsion prerequisite for compensability in physical taking cases. This prerequisite states, unremarkably, that only coerced physical invasions can be considered a taking. Southview, 980 F.2d at 95. The Second Circuit saw no governmental coercion because the developer had voluntarily proposed the vacation home development. Id. However, it is the voluntariness of the landowner's accepting the deer on his property, not of his development proposal, that is the pertinent inquiry. (113.) Id. at 95-100. Lack of ripeness was attributed to the landowner's failure to seek state approval of scaled-down development plans for the site that did not intrude upon deeryard, and its failure to seek compensation in the state courts. Writing only for himself, the chief judge opined that if the merits had been reached, he would find no regulatory taking. Id. at 105-09. For one thing, it appeared that the developer's proposal could be fit into the nondeeryard portion of the tract. (114.) No. 93-00554 (Fla. Dist. Ct. App. Mar. 16, 1994). (115.) Id., slip op. at 4. (116.) The era of modern regulatory takings jurisprudence may be taken as beginning in 1978, with the Supreme Court's decision in Penn Central Transp. Co. v. New York City, 438 U.S. 104. See supra note 6. (117.) One state case, however, skirts the issue. Sierra Club v. State Bd. of Forestry, 4 Cal. App. 4th 942, 955, 6 Cal. Rptr. 2d 326, 334 (1992), review granted, 9 Cal. Rptr. 2d 834 (1992). The court dismissed the possibility of a taking issue in the Board's requirement that a timberland owner prepare a wildlife survey as part of its submitted timber harvest plan. Although acknowledging that the requirement of wildlife surveys "could be used as a weapon of delay in the processing of timber harvest plans," the court found no evidence that the requested survey was unreasonable. Id. (118.) All recent cases appear to arise from federal wetlands regulation. See, e.g., Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993) (three-year delay in developing subdivision due to improper federal assertion of jurisdiction over wetlands therein is not a taking). Tabb Lakes relies heavily on a Supreme Court dictum in Agins v. City of Tiburon, asserting that "mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are "incidents of ownership." They cannot be considered a |taking' in the constitutional sense." 447 U.S. 255, 263 n.9 (1980) (footnotes omitted) (quoting Danforth v. United States, 308 U.S. 271, 285 (1939)). (119.) See infra text accompanying notes 139-147. (120.) See infra text accompanying notes 132-135. (121.) ESA [sections] 11(a)(3), 16 U.S.C. [sections] 1540(a)(3) (1988) (protection of persons as civil defense); ESA [sections] 11(b)(3), 16 U.S.C. [sections] 1540(b)(3) (1988) (protection of persons as criminal defense). See Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1428 (10th Cir. 1986), cert. denied, 480 U.S. 851 (1987). (122.) In limiting removal authority to government agents, these special rules track the Wild Free-Roaming Horses and Burros Act, which requires the United States to remove wild horses and burros from private land when requested. 16 U.S.C. [sections] 1334 (1988). (123.) 50 C.F.R. [sections] 17.40 (1992). (124.) Id. at [sections] 17.40(b)(i)(c). (125.) 50 C.F.R. [sections] 17.84(c)(5) (1992). (126.) ESA [sections] 10(a)(1)(b), 16 U.S.C. [sections] 1539(a)(1)(B) (1988). (127.) See generally Stephen Tan, Comment, The Watchtower Casts No Shadow. Nonliability of Federal and State Governments for Property Damage Inflicted by Wildlife, 61 U. Colo. L. Rev. 427 (1990). (128.) The one arguable exception to this unanimity is the district court decision in Fallini v. Hodel, 725 F. Supp. 1113 (D. Nev. 1989) (raising taking issue sua sponte and deciding for plaintiff), aff'd on other grounds, 963 F.2d 275, 279 (9th Cir. 1992). Plaintiff subsequently filed a slightly recast taking claim in the U.S. Court of Federal Claims, which recently found no taking. See infra text accompanying note 142. (129.) See, e.g., Christy v. Hodel, 857 F.2d 1324, 1335 (9th Cir. 1988), cert. denied, 490 U.S. 1114 (1989). (130.) Sickman v. United States, 184 F.2d 616, 618 (7th Cir. 1950), cert. denied, 341 U.S. 949 (1951). See also Restatement (Second) of Torts [sections] 508 (1977). Tort decisions establish that even when government has management responsibility for the area where the wild animal caused injury, no tort liability attaches in the general instance. See, e.g., Rubenstein v. United States, 338 F. Supp. 654 (N.D. Cal. 1972) (holding federal government not liable in tort to camper attacked by bear in national park). (131.) See infra notes 132-35, 139-46. (132.) 857 F.2d 1324 (9th Cir. 1988), cert. denied, 490 U.S. 1114 (1989). (133.) Taking advantage of the fact that the grizzly bear is merely a threatened species, the rancher had initially sought to have a FWS agent solve his problem by setting snares in an effort to catch the bears. Christy, 857 F.2d at 1326. This effort proved unsuccessful, however. See supra note 124 and accompanying text. (134.) Christy, 857 F.2d at 1335. On the facts presented, the Christy court might well have adduced an additional ground for rejecting the taking claim. The land leased by Christy for his sheep was adjacent to Glacier National Park, home to a population of grizzly bears. At least by 1975, long before Christy entered into the lease, these bears were known to "wander into settled areas where they . . . commit significant depredations on . . . livestock." 40 Fed. Reg. 31734, 31735 (1975). Moreover, the grizzly was listed as threatened in that same year. Id. Thus, Christy arguably had no reasonable expectation that his sheep would be safe from predator attack, or that he would be able to defend them by use of firearms. (135.) 490 U.S. at 1115-16 (White, J., dissenting). See Geoffrey L. Harrison, Comment, The Endangered Species Act and Ursine Usurpations: A Grizzly Tale of Two Takings, 58 U. Chi. L. Rev. 1101 (1991). For a broader treatment, see Lauri Alsup, Comment, The Right to Protect Property, 21 Envtl. L. 209 (1991). (136.) ESA [sections] 9(a), 16 U.S.C. [sections] 1538(a) (1988). (137.) See Christy, 857 F.2d at 1329 n.4. (138.) See, e.g., United States ex rel. Bergen v. Lawrence, 848 F.2d 1502 (10th Cir.) (ordering removal or modification of fence erected on private property because of statute barring enclosure of federal lands), cert. denied, 488 U.S. 980 (1988). (139.) But see supra note 128. (140.) 16 U.S.C. [subsections] 1331-1340 (1988). (141.) Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1430-31 (10th Cir. 1986), cert. denied, 480 U.S. 851 (1987). The United States did not appeal the trial court's grant of mandamus, which ordered the Secretary of the Interior under the WFHBA to remove all wild horses from the plantiffs' land and to reduce the wild horse population on adjacent public lands. (142.) Fallini v. United States, No. 92-809 (Fed. Cl. Mar. 11, 1994). (143.) United States ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1507 (10th Cir.) (citing Mountain States, 799 F.2d 1423), cert. denied, 488 U.S. 980 (1988). (144.) Bishop v. United States, 126 F. Supp. 449, 452 (Ct. Cl. 1954), cert. denied, 349 U.S. 955 (1955). (145.) American Farm Bureau Fed'n v. Block, 14 Envtl. L. Rep. (Envtl. L. Inst.) 20,763 (D.S.D. May 14, 1984). The failure of the federal agency defendants to control the size of the prairie dog population on federal lands was seen by the court to be merely tortious, rather than a taking. Id. at 20,765. Alternatively, the court cited ferae naturae. Id. (146.) The seminal state case finding no taking appears to be Barrett v. State, 220 N.Y. 423, 116 N.E. 99 (1917) (government-reintroduced beavers destroyed hundreds of trees on valuable private woodland). Later no-taking rulings include Maitland v. People, 93 Colo. 59, 23 P.2d 116 (1933) (protected deer allegedly increased in number causing crop damage); Platt v. Philbrick, 8 Cal. App.2d. 27, 47 P.2d 302 (1935) (wild animals in game refuge might proliferate as result of year-round hunting ban, causing damage to private garden in refuge); Cook v. State, 192 Wash. 602, 74 P.2d 199 (1937) (beaver trapping ban resulted in damage to private lake used as commercial skating rink); and Collopy v. Wildlife Comm'n, 625 P.2d 994 (Colo. 1981) (goose hunting ban inflated goose population, causing crop losses). See also Leger v. Louisiana Dept. of Wildlife and Fisheries, 306 So.2d 391, 393 (La. Ct. App. 1975) (deer hunting ban resulted in crop damage; compensation claim denied on nonconstitutional grounds), review denied, 310 So.2d 640 (La. 1975).

On the opposite side of the ledger, state decisions finding a taking include State v. Herwig, 17 Wis.2d 442, 117 N.W.2d 335, 340 (1962) (waterfowl hunting ban led to "unnaturally concentrated foraging" on plaintiffs crops), and Shellnut v. Arkansas, 222 Ark. 25, 258 S.W.2d 570 (1953) (deer hunting ban resulted in damage to orchards and crops). In both cases, a factor pointing toward a taking was the state's departure from its general practice of purchasing easements over tracts situated so as to be valuable as a game refuge. See Henvig, 117 N.W.2d at 340; Shellnut, 258 S.W.2d at 573. (147.) Many state cases have recognized a state constitutional right to defend one's property from wild animals even when contrary to state conservation laws. See, e.g., Cross v. State, 370 P.2d 371, 376-77 (Wyo. 1962) (due process clause in state constitution read to guarantee "the inherent and inalienable right to protect property). See generally Mountain States Legal Found. v. Hodel, 759 F.2d 1423, 1428 n.8 (10th Cir. 1986), cert. denied, 480 U.S. 851 (1987); J.C. Vance, Annotation, Right to Kill Game in Defense of Person or Property, 93 ALR.2d 1366 (1964) (noting that property protection right has been found both in states having constitutional provisions guaranteeing the right of acquiring, possessing, and protecting property, and those that do not). As apparent from the text herein, no such rights have been judicially acknowledged under the federal Constitution or ESA, arguably altering the taking analysis for the ESA.

Other state cases have involved statutes providing for compensation to persons whose property is damaged by protected wild animals. See, e.g., Maitland, 23 P.2d 116. (148.) U.S. FWS, Report to Congress: Endangered and Threatened Species Recovery Program 103-105 (1990). (149.) Christy v. Hodel, 857 F.2d 1324, 1335 n.9 (9th Cir. 1988), cert. denied, 490 U.S. 1114 (1989). (150.) It has been held that the Secretary of the Interior has "an affirmative duty to increase the population of protected species' under ESA section 7. Defenders of Wildlife v. Andrus, 428 F. Supp. 167, 170 (D.D.C. 1977). In Mountain States, the Bureau of Land Management acknowledged that there was an overpopulation of wild horses since it assumed control of them, but the majority's taking analysis does not address the point. Mountain States, 799 F.2d at 1432 (Seth, J., dissenting). (151.) See Barrett v. State, 220 N.Y. 423, 116 N.E. 99 (1917). In Barrett, the state reintroduced beavers to a region of the Adirondack Mountains, where they destroyed hundreds of trees on plaintiffs valuable woodland. The court found no violation of the police power, explaining that the state justifiably believed that its actions would promote the public good. Nor was reintroduction seen to be different in legal contemplation from increasing the beaver population by banning their destruction, as the state, the court believed, could surely do. However, by virtue of its age, police-power focus, and strong deference to government, Barrett probably has little precedential value for a latter-day taking challenge to the ESA. (152.) Moerman v. State, 17 Cal. App. 4th 452, 21 Cal. Rptr. 2d 329, review denied, No. S034811 (Cal. S. Ct. 1993), cert. denied, 62 U.S.L.W. 684 (U.S. Apr. 18, 1994) (No. 93-1171). See Cal. Fish and Game Code [sections] 3951 (West 1984 Supp. 1988) (authority for relocating herd). Another pending taking case addressing government-introduced animals is Hage v. United States, No. 91-1470 (Cl. Ct. filed Sept. 26, 1991) (claiming that non-indigenous elk introduced by state onto federal land with Forest Service permission are impairing stockwatering rights). (153.) Cal. Fish and Game Code [sections] 332 (West 1984 & Supp. 1988). (154.) Moerman, supra note 152. (155.) The state did monitor the movements of the elk through ear tags and radio collars, and attempted to move them off private land when a property owner complained. Moerman, 17 Cal. App. 4th at 458, 21 Cal. Rptr. 2d at 333. (156.) 857 F.2d at 1328-31. As with the circuit court's holding of no taking, Justice White's dissent from the denial of certiorari takes exception. Christy, 490 U.S. at 1115. Justice White argues that a person's right to protect his property--"long recognized at common law . . . and deeply rooted in the legal traditions of this country"--may indeed be fundamental under substantive due process. Id. (citations omitted).

As mentioned, supra note 147, certain state courts have construed state constitutions to confer a right to protect property from protected wildlife. In a recent related case, property-protective provisions in a state constitution influenced a court to void on due process and police power grounds a county's absolute ban on private fences within an "Area of Critical County Concern" for the Key Deer, listed as endangered under the ESA. Moorman v. Dep't of Community Affairs, 626 So.2d 1108 (Fla. Dist. Ct. App. 1993). The constitutional concern for property rights, said the court, dictated that the state's efforts be more narrowly tailored. (157.) See supra note 123. (158.) Sickman v. United States, 184 F.2d 616 (7th Cir. 1950), cert. denied, 341 U.S. 939 (1951). In another case, involving the spread of prairie dogs from federal to private lands, the FTCA claim was defeated by plaintiffs' failure to first present their claim to a federal agency, as required by the FTCA. 28 U.S.C. [sections] 2675(a). American Farm Bureau Fed'n v. Block, 14 Envtl. L. Rep. (Envtl. L Ent. (20,763 (D.S.D. May 14, 1984). (159.) ESA [sections] 9(a)(1)(A),(D),(E),(F), 16 U.S.C. [sections] 1538(a)(1)(A),(D),(E),(F)(1988); ESA [sections] G(a)(2)(A),(C),(D), 16 U.S.C. [sections] 1538(a)(2)(A),(C),(D) (1988); ESA [sections] 16 U.S.C. [sections] 1538(d) (1988). (160.) Id. (161.) See, e.g., ESA [sections] 10(f), 16 U.S.C. [sections] 1539(f) (1988). (162.) ESA [sections] 10(b), 16 U.S.C. [sections] 1539(b) (1988). (163.) Id. (164.) Id. (165.) ESA & [sections] 9(b), 16 U.S.C. [sections] 1538(b) (1988). (166.) ESA & [sections] 10(f), 16 U.S.C. [sections] 1539(f) (1988). (167.) See infra notes 168-76. By contrast, state cases limiting commercial transactions appear to deal solely with state efforts to limit before the fact the property rights acquired when wildlife is reduced to capture. Cases upholding such efforts against taking challenge are of no relevance here, however, because in such circumstances there is no interference with investment-backed expectations. See, e.g., Smith v. State, 155 Ind. 611, 613, 58 N.E. 1044 (1900). Since its first articulation in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978), the extent to which a government action interferes with investment-backed expectations has been reasserted by the Supreme Court as a regulatory taking factor on numerous occasions. The most recent example is Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, 113 S. Ct. 2264, 2291 (1993). See also Fallini v. United States, No. 92-809, slip op. at 8 (Fed. Cl. Mar. 11, 1994) (holding that due to presence of wild horses on federal grazing allotment at time water-use permits were issued, permittee-rancher could not reasonably have expected exclusive use of the water). (168.) 537 F.2d 796, 797 (6th Cir. 1976). (169.) 444 U.S. 51 (1979). (170.) 16 U.S.C. [subsections] 668-668d (1988). (17.) 16 U.S.C. [subsections] 703-12 (1988 & Supp. 1989). (172). Hodel v. Irving, 481 U.S. 704, 718-19 (1987). (173.) 112 S. Ct. 2886, 2899-00 (1992). What is particularly interesting about the endorsement of Allard by the majority opinion in Lucas is that the latter was written by Justice Scalia. Just five years earlier, he had asserted that by branding a federal law abolishing descent and devise of certain Indian property as a talking, the Court had "effectively limit[ed] Allard to its facts." Hodel v. Irving, 481 U.S. at 719 (Scalia, J., concurring). (174.) See Colloquium on Lucas, 23 Envtl. L. 869 (1993). (175.) 112 S. Ct. at 2899. (176.) Id. at 2899-900. (177.) 16 U.S.C. [sections] 1534 (1988). (178.) ESA [sections] 5(a)(1),(2), 16 U.S.C. [sections] 1534(a)(1),(2) (1988). A related provision, section 6(c)(1)(d), sets the existence of state-agency authority for acquiring the habitat of ESA-protected wildlife as a condition of federal-state cooperative agreements under the Act. 16 U.S.C. [sections] 1535(c)(1)(d) (1988). (179.) First, there is the term "otherwise" in the text of the statute. ESA [sections] 5(a)(2), 16 U.S.C. [sections] 1534(a)(2) (1988). If this term is viewed as limited to other non-coercive measures, there remains the argument that under the General Condemnation Act, 40 U.S.C. [sections] 257 (1988), a federal agency's power to condemn has been held as broad as its power to "acquire by purchase." See, e.g., Swan Lake Hunting Club v United States, 381 F.2d 238, 241 (5th Cir. 1967). (180.) 692 F. Supp. 1210 (S.D. Cal. 1988). (181.) Id. at 1214-15 (reviewing voluntary transfer to federal government of 178 acres to be used as mitigation land in connection with Corps of Engineers flood control highway project). (182.) United States v. Little Lake Misere Land Co., 412 U.S. 580, 594-97 (1973) (finding state law inapplicable where it would negate terms of prior land acquisition). (183.) North Dakota v. United States, 460 U.S. 300, 318-19 (1983) (holding state law authorizing landowners to drain wetlands contrary to terms of easement acquired by the federal government may not be applied). (184.) See, e.g., Yee v. City of Escondido, 112 S. Ct. 1522 (1992) (reviewing mobile home park regulation). (185.) See, e.g., Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1430 (10th Cir. 1986) (plaintiffs assert physical taking of consumed forage by WFHBA-protected wild horses), cert. denied, 480 U.S. 851 (1987); Christy v. Hodel, 857 F.2d 1324, 1334 (9th Cir. 1988) (plaintiffs assert physical taking of livestock based on ESA protection of marauding bears), cert. denied, 490 U.S. 1114 (1989). It is no obstacle to a claim of taking by permanent physical occupation that different animals are present on one's property at different times, perhaps with interim periods when no animals are present. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 832 (1987). (186.) See, eg., Mountain States, 797 F.2d at 1426 (plaintiffs assert that federal government's pervasive control over wild horses subjects it to liability for their actions). (187.) See, eg., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (permanent physical occupation of land is per se taking). The irrelevance to the Loretto rule of the minor extent of the permanent physical invasion suggests that there is effectively no "property as a whole" rule for talkings by permanent physical occupation. (188.) See, e.g., Mountain States, 799 F.2d at 1430-31 (10th Cir. 1986), cert. denied, 480 U.S. 851 (1987). (189.) Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2899 n.14 (1992) (emphasis added). (190.) The principle would not appear to undercut whatever viability there may be in claims for the physical taking of the property (forage, livestock, etc.) actually consumed by the shielded wildlife. (191.) See, e.g., Mountain States, 799 F.2d at 1428 (WFHBA "is nothing more than a land-use regulation"). (192.) See, eg., Mountain States, 799 F.2d at 1426-28 (holding government control of wild horses under the WFHBA was no greater than under many other federal and state wildlife protection laws); Christy v. Hodel, 957 F.2d 1324 (9th Cir. 1988) (finding ESA protections for threatened grizzly bears do not make them agents of the United States), cert. denied, 490 U.S. 1114 (1989). At the state level, see Moerman v. State, 17 Cal. App. 4th 452, 21 Cal. Rptr. 2d 329 (1993) (holding state relocation of tule elk herd and monitoring of its movements does not constitute sufficient control to impute actions of herd to state), review denied, No. S034811 (Cal. S. Ct. 1993), petition for cert. filed, 62 U.S.L.W. 3511 (U.S. Jan. 18, 1994) (No. 93-1171). (193.) See text accompanying notes 110-15. (194.) "[I]t is pure fantasy to talk of |owning' wild fish, birds, or animals. Neither the States nor the Federal Government ... has title to these creatures until they are reduced to possession by skillful capture." Douglas v. Seacoast Products, 431 U.S. 265, 284 (1977). Shortly after Douglas, the Supreme Court sounded the death knell for the state ownership doctrine, under which the wildlife within a state was regarded as owned by that state. Hughes v. Oklahoma, 441 U.S. 322 (1979), overruling Geer v. Connecticut, 161 U.S. 519 (1896). (195.) See, eg., Mountain States, 799 F.2d at 1426. (196.) Hughes, 441 U.S. at 334-35 (citing Seacoast Products). (197.) See supra notes 13247 and accompanying text. (198.) See supra notes 147-54 and accompanying text. (199.) See, eg., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (holding taking caused by statute requiring landlords to allow installation of cable TV equipment by private franchisee); Kaiser Aetna v. United States, 444 U.S. 164 (1979) (finding taking caused by federal order that owners of exclusive private lagoon grant access to boating public). (200.) U.S. Const. amend. V. See, eg., Leeth v. United States, 22 Cl. Ct. 457 (1991) (holding plaintiff failed to present prima facie case that federal dam caused significant incremental flooding). (201.) laterally, "on account of the soil." Black's Law Dictionary 1263 (6th ed. 1990). (202.) Collopy v. Wildlife Comm'n, 625 P.2d 994, 999-1000 (1981), and cases collected therein. The Collopy court termed hunting on one's land a "privilege against the state." Id. at 1000. See generally 4 Am. Jur. 2D Animals [sections] 18 (1962).

Notwithstanding the majority view, a pending suit attacks the State of Wyoming's system for allocating hunting permits on the basis of an asserted right to hunt on one's land. Clajon Production Corp. v. Wyoming Game and Fish Comm'n, No. 93-CV-2233 (D. Wyo. Med May 2, 1993). Plaintiff also challenges the state's nontransferability rule for such permits, asserting that it takes plaintiff's profits a prendre or "right of venery" in deciding who may exercise the allocated hunting permits. Id. (203.) Andrus v. Allard, 444 U.S. 51, 66 (1979). A fortiori, government restriction of the hunting of wildlife not on one's land falls short of a taking. See, e.g., Aleut Community of St. Paul Island v. United States, 117 F. Supp. 427 (Ct. Cl. 1954) (holding federal regulation of seal hunting by Alaskan natives is not a taking, despite longstanding custom). (204.) See generally BEAN, supra note 15, at 10-12. (205.) TVA v. Hill, 437 U.S. 153, 174 (1978). (206.) Whether the urgency of species preservation tips the constitutional balance in a due process context was addressed in Mountain States Legal Found. v. Espy, 833 F. Supp. 808 (D. Idaho 1993). There, the court held that Forest Service restrictions on use of a road to a national forest inholding, imposed to protect the ESA-listed chinook salmon, did not violate the constitutional right to travel. Although the right to travel is fundamental in due process jurisprudence, species preservation under the ESA is a "compelling governmental purpose." Id. at 816. (207.) Lucas v. South Carolina Coastal Council, 112 S. Ct. 2286 (1992). (208.) Lucas, 112 S. Ct. at 2898 n.11. See also Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165, 1197-98 (1967) (discussing difficulty of the harm-benefit distinction and calling wildlife conservation "not free of ambiguity" as to its harm prevention-benefit creating status). (209.) 112 S. Ct. at 2893. (210.) Id. at 2900. (211.) See David Coursen, Lucas v. South Carolina Coastal Council: Indirection in the Evolution of Takings Law, 22 Envtl. L. Rep. (Envtl. L. Inst.) 10778, 10781 (1992). (212.) Preseault v. United States, 27 Cl. Ct. 69, 87 (1992) (applying Lucas to regulations that cause or authorize physical invasions), appeal docketed, No. 93- 5067 (Fed. Cir. Jan. 28, 1993). See also California Housing Securities v. United States, 959 F.2d 955, 958 (Fed. Cir. 1992) (applying Lucas-type analysis to hold that physical invasion violates right to exclude, but owner in regulated banking industry lacks that right), cert. denied, 113 S. Ct. 324 (1992). (213.) A California state court appears to be the only judicial forum to address this point thus far. In Sierra Club v. Dep't of Forestry, A056250 (Cal. Ct. App. Dec. 29, 1993), the court noted in dictum that "wildlife regulation of some sort has been historically a part of the pre-existing law of property," and hence seems to qualify as a Lucas background principle. Id., slip op. at 20. However, it did not take the next step of concluding that as a result, state regulation of property on behalf of wildlife could never amount to a taking.

Quite recently, two Supreme Court Justices observed that "Lucas . . . would be a nullity if anything that a state court chooses to denominate |background law' . . . could eleminate property rights." Stevens v. City of Cannon Beach, 62 U.S.LW. 3621, 3622 (U.S. March 21, 1994) (No. 93-496) (Scalia and O'Connor, JJ., dissenting from denial of certiorari). In sounding this cautionary note, however, the Justices appeared to warn against judicial fabrication of previously nonexistent property law, rather than to suggest that any areas of property law might be less eligible for "background principles" status than others. Id. (214.) Lucas spoke only of "background principles of the State's law of property and nuisance" in ascertaining what property interests are constitutionally protected. Lucas, 112 S. Ct. at 2886 (emphasis added). However, its approach has been held applicable to federal statutory law as well. See Preseault, 27 CI. Ct. at 88-89; M&J Coal Co. v. United States, 30 Fed. CI. 360, 367-70 (1994) (citing Preseault).

The extension of Lucas to federal statutes appears sound. There is no principled reason why federal law should be any less cognizable as a "background principle," since a purchaser's expectations at the time of acquisition may be shaped as much by then-existing federal law as by state law. On the other hand, federal law tends to be statutory, rather than common law, and the Lucas majority opinion voices suspicion as to acquisitive legislative motives in drafting justifications for land-use enactments. Lucas, 112 S. Ct. at 2898 n.12, 2899, 2902 n.18. (215.) Gary D. Meyers, Variation on a Theme: Expanding the Public Trust Doctrine to Include Protection of Wildlife, 19 Envtl. L. 723 (1989). (216.) In re Steuart Transp. Co., 495 F. Supp. 38, 40 (E.D. Va. 1980) (emphasis added). Importantly, this decision came after the demise of the state ownership doctrine in Hughes. See Hughes v. Oklahoma, 441 U.S. 322, 326-35 (1979). (217.) Should a release of hazardous substances cause injury to ESA-protected biota, recognition of a public trust relationship between government and wildlife might increase the probability of property owner liability under the Comprehensive Environmental Response, Compensation and Liability (Superfund) Act of 1980. 42 U.S.C. [subsections] 9601-9675 (1988). The Superfund Act imposes liability for injury to certain "natural resources" as a result of such releases. 42 U.S.C. [sections] 9607(a)(4)(c) (1988). Superfund defines natural resources to include, "fish, wildlife, biota ... held in trust by ... the United States," states, or Indian tribes. 42 U.S.C. [sections] 9601(16) (1988). Nothing in the statute appears to exempt injury to species inhabiting private property, whether it be the defendant's or someone else's. (218.) The judiciary might view the embrace of a federal wildlife servitude as a consequence of an extension of the public trust doctrine to wildlife. Case law and commentators suggest that protections provided by the public trust doctrine include a restrictive servitude insulating regulation of trust resources from taking liability. See, e.g., Michael C. Blumm, Public Property and the Democratization of Western Water Law: A Modern View of the Public Trust Doctrine, 19 Envtl. L. 573, 584-587 (1989). (219.) See, e.g., Barrett v. State, 220 N.Y. 423, 116 N.E. 99, 100 (1917). (220.) Armstrong v. United States, 364 U.S. 40, 49 (1960). (221.) 317 Or. 110, 854 P.2d 437 (Or. 1993), cert. granted, 62 U.S.L.W. 3301 (U.S. Nov. 29, 1993) (No. 93-518). (222.) See Pennell v. City of San Jose, 485 U.S. 1, 20-24 (1988) (Scalia, J., concurring in part, dissenting in part) (requiring landlord to subsidize "hardship tenants," whose limited means are no fault of the landlord, violates Takings Clause). (223.) See Bean et al, supra note 78, at 56 (population monitoring and habitat enhancement requirements in San Bruno Mountain Area Habitat Conservation Plan). (224.) Concerned Shrimpers of America, Inc. v. Mosbacher, No. CA C-90-39 (S.D. Tex. Mar. 8, 1990) (unpublished). (225.) For example, a brochure promoting sale of residences in a self-described environmentally sensitive development extols the presence there of several endangered species of birds. The Wilson Co., Stone's Harbour Ridge (Fla. undated) (on file with author). (226.) In a wide variety of contexts, takings decisions have incorporated into their analyses the offsetting benefits to the property owner of regulatory burdens. In some decisions, the offsetting benefit is attributed to an "average reciprocity of advantage," as when land-use restrictions are offset by benefits flowing to the landowner from similar restrictions on neighboring properties. See, e.g., Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 (1987) (holding nuisance exception to taking liability is consistent with notion of reciprocity of advantage). (227.) See supra text accompanying notes 167-76. (228.) Cappaert v. United States, 426 U.S. 128 (1976). (229.) TVA v. Hill, 437 U.S. 153 (1978). (230.) Keppe v. New Mexico, 426 U.S. 529 (1976). (231.) See supra text accompanying notes 73-85. Also cutting against congressional action this year are the competing demands of other environmental reauthorization efforts. (232.) See floor debate leading to House passage of The National Biological Survey Act of 1993, H.R. 1845, 103d Cong., 1st Sess. (1993): 139 Cong. Rec. H. 7468-7509 (daily ed. Oct. 6, 1993); 139 Cong. Rec. H. 8461-84 (daily ed. Oct. 26, 1993). Although merely creating a central databank and authorizing studies, H.R. 1845 provoked attacks from property rights members on two principal grounds. First, concern was that in gathering information, Survey agents might enter upon private land without the owner's consent. See, eg., 139 Cong. Rec. at H 7479 (statement of Rep. Young); id. at H 7502 (statement of Rep. Tauzin). Second, and more significant, was the prediction by some members that enhanced awareness of declining species populations might prompt more regulatory strictures on private land use, particularly through the ESA. See, eg., 139 Cong. Rec. at H 8466 (statement of Rep. Tauzin). It was also suggested that the survey's identification of protected species members on a parcel might impair its collateral value to a lending institution. H.R. 1845--The National Biological Survey Act of 1993. Hearing before Subcomm. on Technology, Environment and Aviation and Subcomm. on Investigations and Oversight, House Comm. on Science, Space and Technology, 103d Cong., 1st Sess. 24-28 (1993) (statement of Rep. Hayes). The Senate has of yet taken no action. (233.) See, e.g., Who Should Deal with the Taking Issue: The Courts or Congress, attachment to Dear Colleague letter distributed by Rep. Tauzin (Feb. 199-4). (234.) Several bills introduced in the 103d Congress would trigger compensation to the landowner when a specified federal action occurred, or when a set percentage of property value loss occurred as a result of federal action. See, eg., H.R. 1330 (owners of wetlands placed into most use-restrictive category may elect to receive compensation); H.R. 1388 (property owner who incurs "any diminution in value" as result of specified federal actions is entitled to compensation); H.R. 3875/S. 1915 (landowners who suffer 50 percent or greater value loss as result of actions under ESA or federal wetlands program are entitled to compensation). Of course, there is no constitutional objection to Congress providing compensation over and above the Fifth Amendment standard, which imposes only a minimum duty. United States v. 50 Acres of Land, 469 U.S. 24, 30 n.14 (1984). (235.) See Endangered Species Act--Incentives to Encourage Conservation by Private Landowners, Hearing before the Subcomm. on Env't and Nat. Res., House Comm. on Merchant Marine and Fisheries, 103d Cong., 1st Sess. 1993. (236.) Executive Order No. 12,630, supra note 8, already requires preparation of "taking impact assessments" of proposed agency actions, but the Order's future under the Clinton Administration is reportedly in doubt. (237.) See supra text accompanying notes 73-85. (238.) H.R. 2043, 103d Cong., 1st Sess. (1993) (Rep. Studds, Chairman, House Committee on Merchant Marine and Fisheries); S. 921, 103d Cong., 1st Sess. (1993) (Sen. Baucus, Chairman, Senate Committee on Environment and Public Works). (239.) H.R. 1490, 103d Cong., 1st Sess. (1993) (Rep. Tauzin); S. 1521, 103d Cong., 1st Sess. (1993) (sen. Shelby). (240.) Holmes Rolston, III, Property Rights and Endangered Species, 61 U. Colo. L. Rev. 283, 283 (1990). (241.) Id. at 283. (242.) In his dissenting opinion in Lucas, Justice Stevens opined: "New appreciation of the significance of endangered species ... shapes our evolving understandings of property rights." Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2921-22 (1992) (citations omitted). See also Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 Stan. L. Rev. 1433, 1446-49 (1993) (property definitions historically have evolved to reflect new economic and social values, often to the disadvantage of existing owners); John R. Nolon, Private Property Investment, Lucas, and the Fairness Doctrine, 10 Pace Envtl. L. Rev. 43, 4647 (1992) (efforts to define property rights precisely are in vain). (243.) If Sweet Home Chapter's reading of section 9 stands, there may be very few taking claims under the ESA at all. At least under the federal endangered species law, taking claims would be limited to private development with a federal nexus. See supra text accompanying notes 68-72. (244.) See supra notes 93-99 and accompanying text. (245.) See supra notes 132-45 and accompanying text. (246.) See supra notes 134, 154, 191 and accompanying text. (247.) See supra notes 148-55 and accompanying text. (248.) See supra notes 169-76 and accompanying text. (249.) See supra note 94. (250.) See supra note 221 and accompanying text. (251.) See, eg., supra note 94. Recent takings decisions of the Federal Circuit have yielded a proportion of plaintiff victories higher than the historical norm for takings actions against the United States. See, eg., Hendler v. United States, 952 F.2d 1364 (1991); Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (1991); Yancey v. United States, 915 F.2d 1534 (1990); United Nuclear Corp. v. United States, 912 F.2d 1432 (1990). (252.) Exec. Order No. 12,630, supra note 8. (253.) State legislators appear to have the same concerns regarding enactment of discretionary compensation for property owners. Several states in recent years have adopted laws demanding that state agencies make formal assessment of the private property implications of their proposed regulatory actions. Despite widespread consideration, however, no state as yet has embraced extra-constitutional compensation of land owners for adverse regulatory impacts. See generally National Audubon Soc'y, State Takings Legislation (1993). (254.) See, e.g., Bowles v. United States, No. 303-88, slip op. at 1 (Fed. CI. Mar. 24, 1994) (lamenting the difficulties of takings litigation, and noting that "[j]udicial decisions are far less sensitive to societal problems than the law and policy made by the political branches . . .").

Robert Meltz Legislative Attorney, Congressional Research Service, Library of congress; J.D. 1975, Georgetown University; M.A. 1967, University of Pennsylvania. The opinions expressed herein do not necessarily reflect those of the Congressional Research Service.

Thanks are due to Pamela Baldwin and M. Lynne Corn for helpful comments.